Why plea bargains serve justice

A while ago, I had two jury trials scheduled in a row. The same District Attorney was handling both cases. We met before the trials to work out last minute details and we both admitted that I would probably win the first case and he would probably win the second one.

The exact opposite happened.

The lesson is this: You never know what a jury will do. Many times a trial has ended with a result that has both sides (and the judge) scratching their heads wondering what happened. justiceGuilty people have gone free and innocent people have been convicted. Our system of justice may be one of the best in the world, but it’s not perfect, because human beings are involved.

And that’s why we like plea bargains.

Here’s a more recent example. My client was charged with a number of serious felonies. The only evidence against him was the word of the alleged victim, and I believed that testimony would not be enough to convict him (especially since he would also be testifying and I had other witnesses that would challenge the victim’s testimony). I honestly believed my client to be innocent of the charge. If we went to trial, I fully expected to win.

But I could not guarantee it.

So I spent a lot of time negotiating with the District Attorney. His job is to protect society and this witness wanted to testify and bring charges. If a jury believed her, then justice would be done. He knew he didn’t have the strongest case and he knew he would probably lose but he also could not guarantee it.

So we tried to work it out. It was better for both of us to get something than to risk it with a jury.

Because I knew I had a good case, I was able to get a very good deal for my client. Instead of facing years in prison with a felony charge, he entered a “nolo contendre” plea (meaning he didn’t technically admit guilt but instead admitted that the DA could prove his case) to a minor charge with an agreement to place him on probation for one year.

The same thing happens when I have a bad case. Even if it’s clear that my client is guilty, there’s still no guarantee that the DA will win at trial. After all, besides the worry about juries doing unexpected things, sometimes other surprises happen during a trial — witnesses change their story or don’t show up, evidence and testimony is challenged, something else goes wrong — so the DA has the same thoughts I had in the example above: I will probably win, but what if I don’t? It’s better to get the guy found guilty of something than to risk him going free completely. In cases like that, I can usually work out a deal for my client, although since the odds favor the DA he won’t give up too much and thus he ends up with the better deal.

The only time you really go to trial is when you can’t work out a reasonable deal — when it’s better to take your chances with a jury because even if you lose, you won’t be that much more worse off than what the DA offered. (You also go to trial if the client insists even knowing the odds — it’s always the client’s choice whether to take a deal or not.)

So when people say that plea bargaining is bad or that it subverts justice, they’re wrong. You never hear anyone who actually does this for a living say that. The DA asks for something way over there, I ask for something way over here, and when we compromise somewhere in the middle — well, that’s probably as close to justice as we are going to get.


3 thoughts on “Why plea bargains serve justice

  1. My wife loves Law & Order, and lately it’s almost always been on in the house, because there’s always a L&W marathon on somewhere. It’s an interesting contrast to the reality you laid out. On TV, seeking a deal is almost always considered a sign of weakness, regardless of which side brings it up. It makes sense, though, that you would seek a deal from a position of strength, too, just to do what you can to hedge against the worst-case scenario.

    Good post – thanks for sharing.

    Liked by 1 person

  2. An analogy could be made to the commodity futures markets. The farmer sells a contact obliging him to sell wheat at a fixed price on a fixed date. The baker buys one. This sets their prices today (so they can do planning). But when the date gets close, they both go back to the market and liquidate their contracts–taking a profit or loss, depending on what the actual price did. Why? Because the farmer wants to sell to his local market–not to Chicago (as the contract requires)–and the baker wants to buy locally. Over 90% of contracts are liquidated rather than delievered.

    So why have the delivery option at all? Because it keeps the prices honest. If the contract price were way too high, the farmer would ship his stuff to Chicago after all. If it were too low, the baker would rent a truck and drive up there to get it. The threat of delivery keeps everyone honest.

    I think of legal cases in a similar way. It’s a lot of time and effort to hold a trial. Much better if both sides can agree on something short of that. Even if over 90% of contests are resolved with a bargain, the threat of a trial keeps everything in line.


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