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What would happen if the chief public defender of a large city declared that no public defender would accept any plea deal and that they would be taking everyth
by djoldman 6y ago
What would happen if the chief public defender of a large city declared that no public defender would accept any plea deal and that they would be taking everything to trial?
The courts would immediately be clogged and prosecutors would be forced to drop many charges because they wouldn't be able to have a trial within the mandated 70 days.
Prosecutors would be forced to choose the cases that they actually believed important as opposed to the current as-many-charges-and-cases-as-they-can.
- thebooktocome 6y agoMore realistically, that chief public defender would be fired or harassed out of office within days. It's probably unconstitutional for them to refuse plea deals en masse if it creates a massive violation of one's right to a speedy trial.
- djoldman 6y agoI'm not a lawyer but as far as I know it's the duty of the courts to provide for a speedy trial. And all the chief defender need do is state that in their opinion, plea deals are not fair and that they would not be taking any. If the courts couldn't keep up, then that's their problem. If the government wants to bring in more judges and prosecutors, that's its perogative.
- thebooktocome 6y agoI think you underestimate the forces arrayed against this hypothetical chief public defender.
- djoldman 6y agoPerhaps. But in some jurisdictions, there are so many defendants that they don't have enough courtrooms to run trials 24/7 to get them done in 70 days.
- giantg2 6y agoSpeedy trial can vary from state to state. If not in custody, PA considers anything under 4 or 5 years from the charge being brought to be speedy.
- SilasX 6y agoThat feels like a non-standard usage of “speedy”, even accounting for linguistic drift since 1789.
- thaumasiotes 6y agoNot really. All such descriptors are standardly applied in a comparative manner - it is normal to describe a snail as "speedy" if it's faster than other snails, regardless of whether it's faster than other centipedes. But that purely linguistic analysis only tells you that "speedy trial" has no objective meaning, which can't be the intent of the phrase. The right to a "speedy trial" was supposed to ensure that trials occur speedily relative to some context which is now lost.
- giantg2 6y agoNot really. Rules of statutory construction generally say that you need to use a definition from the dictionary if it's not defined in the statute. Webster's basically says without delay. However, it's somewhat ambiguous. The principle of lenity is supposed to interpret ambiguity in favor of the defendant... it rarely happens.
- thaumasiotes 6y ago> Webster's basically says without delay. https://www.merriam-webster.com/dictionary/speedy https://www.merriam-webster.com/dictionary/speedy The entire gloss is "marked by swiftness of motion or action. Also: prompt sense 2". Prompt 2 is "performed readily or immediately". We can reasonably interpret "immediately" as "without delay", but we then run into the problem that that is explicitly one of two options.
- antattack 6y agoApparently in NY it's less than 6 years[1] or life[2]: [1]"New York top court clears man held six years at Rikers Island without trial" https://cn.reuters.com/article/instant-article/idUSKCN1FZ2YZ https://cn.reuters.com/article/instant-article/idUSKCN1FZ2YZ [2]"Browder tragically ended his life in 2015 after suffering beatings, two years of solitary confinement, and egregious conditions during the three years he was incarcerated on Rikers Island—all because of a baseless accusation that he stole a backpack. " https://www.nyclu.org/en/news/new-york-may-finally-do-something-help-prevent-what-happened-kalief-browder https://www.nyclu.org/en/news/new-york-may-finally-do-someth...
- djoldman 6y agoIn cases where you see people in jail for years it's because the defendant has waived their right to a speedy trial until they are next in court. Every time they go to court, they waive their right to a speedy trial until the next time they're in court. If they didn't, the judge would set a trial date for within a short period of time (less than 70 days). In practice, defendants will waive dates to fit into the judge's calendar.
- alasdair_ 6y agoThe Browder case is appalling. For those claiming it was the fault of the defendant for waiving their right to a speedy trial, look at the “trial” section here: https://en.m.wikipedia.org/wiki/Kalief_Browder https://en.m.wikipedia.org/wiki/Kalief_Browder Over and over the prosecution was not ready and over and over the judge allowed it.
- m463 6y agoI think there's also a case-load angle here. Don't public defenders usually have hundreds of active cases?
- MattGaiser 6y agoCould they ethically do that? As then the prosecution has no reason to grant any leniency, so whichever clients they tried would receive far longer sentences. Sacrificing some clients to get others off does not seem permissible. I believe they are also required to present the deal to their clients.
- djoldman 6y agoThe prosecutors don't sentence defendants, judges do. Additionally, judges would know what was going on and presumably take it under consideration.
- munk-a 6y agoDepending on the jurisdiction, though, the judge may be an elected official that doesn't want to look "soft on crime" for re-election or even may be receiving a big chunk of campaign donations from private prison organizations. It's an interesting open question whether judges should be elected or not (though I lean toward no due to the lack of visibility of their actions)... but what isn't up for debate is how corrupt the US election system is - as long as campaign finance is broken we can't expect the judiciary to fix things for us.
- koolba 6y agoThe electorate would likely demand the immediate sacking of the chief public defender.
- giantg2 6y agoMob rule by proxy
- excalibur 6y agoI don't know about the electorate, but other local officials certainly would. Most people can agree that the criminal justice system is broken and needs reform. But efforts to actually fix it are almost always painted as being "soft on crime" by fear mongering political opponents who care far less about reform than getting votes by any means necessary.
- djoldman 6y agoProbably. But it'd be interesting if the mayor said nope, this is what we're doing.
- falcolas 6y agoA more likely outcome would be a doubling or tripling down on the legal threats to the defendant. It’s not the public defender’s call to make, and prosecutors are already pretty good at scaring the shit out of the defendants.
- giantg2 6y agoAnd commiting prosecutorial misconduct with no consequences. Why is this downvoted? I've witnessed it. How else would you describe a trooper and ADA knew that a charge was incorrect and still let it stand, including pretrial restrictions only under the incorrect charge.
- djoldman 6y agoThe beauty of it is that they pretty much already throw as many charges that they can.
- giantg2 6y agoI've seen an ADA and trooper hold a charge on someone even though they knew it was the wrong charge. That charge carried pretrial restrictions that the correct charge did not.
- ianferrel 6y agoLawyers don't accept plea deals. Clients accept plea deals. Lawyers are required by professional ethics (and possibly by law in some places) to present plea deals to their clients. Having it be otherwise would be problematic.
- djoldman 6y agoTrue. However, in practice, most defendants take the advice of their lawyers. If public defenders advised not to take a deal, they probably wouldn't take them. This is definitely the weak point of this plan, I admit.
- ianferrel 6y agoThe problem is that the existing system is in a stable equilibrium. A lawyer generally can't advise most clients to not take a plea deal because not taking the plea deal will have a worse outcome for that client. It's literally the prisoner's dilemma. You have to have all the lawyers and all the clients act in concert. But if someone defects, they get the plea deal (better than getting stuck in jail and going to trial) and the others get screwed.
- djoldman 6y agoIt is tricky for sure. It's a fantasy, I admit. I would truly like to see prosecutors have to take all cases to trial. The flagrant disregard for prosecutorial ethics is just appalling.
- sokoloff 6y agoThey can also give advice as to whether or not accepting the plea deal is in the client’s best interests. That mechanism seems like it would be nearly equally effective, especially in today’s “one strange trick” society.
- pat2man 6y agoAlso judges must approve of a plea deal. I wonder if judges even know the likelihood of a given defendant accepting a plea deal even though they are innocent?
- zachrose 6y agoWhy doesn’t one do this? Because it exposes their individual clients to greater risk?
- giantg2 6y agoIn some cases, the defendant can't afford bail and would be forced to sit in jail until the trial.
- deleted 6y ago[deleted]
- djoldman 6y agoIn these cases, the public defender waives the right to a speedy trial. It's how defendants are allowed to be held without trial for an excessive amount of time. They just have to not waive that right and the trial must proceed within 70 days or so.
- giantg2 6y agoI think that depends on the state and details. If you're not in custody, the limit is generally measured in years. If public defenders are waiving that right without informed consent, then people need to file complaints with the bar
- torstenvl 6y agoYes. It is unethical. Your duty is to your client, not to your public policy position, even if your political position is just and even if it would benefit other hypothetical clients in the future.
- munk-a 6y agoAnd this is exactly how it should be - people's futures shouldn't be bargaining chips to use to push through political reform, least of all the futures of those who may be wrongly accused. If we want to see change in the justice system we need wider societal education and to force that change from the outside, but that butts up against a lot of "hard on crime" rhetoric.
- standardUser 6y agoI'd be worried that prosecutors would go after cases that serve their own purpose and that those wouldn't be the cases most deserving of prosecution. For example, I would want every violent and sexual offense to be prosecuted before even a single drug case is considered. But would a prosecutor give up a a mid-level drug dealer to go after a sexual assault case or a mugging?
- djoldman 6y agoIf a prosecutor can't prove a crime beyond a reasonable doubt, I think we don't want them charging a crime regardless of what the crime is.
- giantg2 6y agoIdeally there shouldn't be any dropped cases. But of course that requires adequate funding. You know, maybe depending money on expanding the number of courts/judges instead of marble floors and hardwood paneling. And we need to do away with most law enforcement discretion (this includes DAs). Enforcement is extremely uneven. If the law using going to be enforced in many situations, then why enforce it at all? This brings up another point. Is this a justice system? How can it be when the cost to defend one's self in court (with or without a lawyer) is more expensive than the fine. You can be punished more defending yourself as an innocent person than as a guilty one who pleads guilty.
- clairity 6y agoi'd be down for expanding courts and enforcing (criminal) laws evenly and justly if we combined that with reviewing and aggressively purging unnecessary and unjust laws first. i'd conjecture we'd lose basically nothing in terms of justice and crime if we did that.
- giantg2 6y agoExactly. There seem to be a lot of non value added laws that are selectively enforced.
- Clewza313 6y agoWell, no, they would be forced to choose the cases where they think they have the best odds of winning. And you'd end up with Japan, where confessions are extracted out of prisoners during pretrial detention and 99.9% of those brought to trial are convicted. That said, even this would probably be an improvement, since plea bargains are an almost uniquely American horror.
- alasdair_ 6y agoJapan has a 99.3% conviction rate, but only a 37% indictment rate, implying roughly two thirds of those arrested and held are let go without charge.
- lazide 6y agoProbably even lower indictment rates, since I’m sure a lot of paperwork get’s ‘lost’ on the more embarrassing cases. If you can spend years held before trial that’s all still cold comfort
- Clewza313 6y agoIt's somewhat difficult to get Japanese police to even investigate crimes. I once had my pocket picked, went to the police station to report it, and they basically refused to mark it as theft and recorded it as lost instead.
- lazide 6y agoYou can’t have bad numbers of no one ever writes down the bad stuff I guess? Face is a big thing in eastern Asian cultures, probably plays a big part.
- gamblor956 6y agoThey did this in San Bernardino and Riverside counties about a decade ago when the DAs refused to bargain over drug rehab diversions for non-violent/non-dealer defendants. Nearly member of the defense bar (led by the public defenders, but including private counsel) convinced their clients to refuse to waive the rights to a speedy trial. SB and Riverside ran out of courtrooms to hold trials in by 10a that Monday, and were forced to ask LA and OC county for help. By that Wednesday, the backlog grew so large that defendants' cases were being dropped because the constitutional deadline for bringing their case to trial had passed. The following week, both DAs gave in completely.
- koolba 6y agoYou’re referring to this right? https://www.courts.ca.gov/partners/documents/Crush_of_Cases_1206_press_enterprise.pdf https://www.courts.ca.gov/partners/documents/Crush_of_Cases_...
- gamblor956 6y agoNo, the events in that article happened because Riverside decided it didn't want to pay for the courtrooms it needed for the volume of cases its court system was dealing with. However, the experiences of the defense bar during that time did inspire the subsequent events to which I was referring, which was in late 2009 or early 2010. It's hard to find articles about it online since it was an esoteric maneuver that AFAIK was only covered by local (now defunct) papers.
- dkdk8283 6y agoYou should look into philidelphia’s district attorney. He led his campaign with plea reform. Also look into private prisons and Unicor. Essentially slave labor for GSA. Truly horrible conditions. There is not one semblance of rehabilitation in the US prison system.
- alasdair_ 6y agoPrisoners should be paid at least the minimum wage, with a portion of their wages going to the victims.
- bsder 6y agoYou can't do that. Putting this on the defender is the wrong target. The two structural changes that I would make are: 1) Any monetary collection by the "justice system" goes to a victim or into a fund which gets redistributed to the general public at the end of the year. No more funding things with fines (aka regressive tax on the poor). You want funding--it comes out of taxes, period. This stops a lot of the perverse incentives in the system. Marijuana legalization is mostly held up because the fines from it fund the "justice system". 2) Prosecutors may not offer plea deals. As we have seen time and again, this devolves into abuse of office. Prosecutors offer deals with far fewer consequences to rich, non-minority defendants. I would actually go one further: 3) Prosecutors don't get any ability to pick the jury. The court should be able to strike people for various bias reasons. The defense should be able to strike people with some limitations. The prosecution should have to make the case with the jury provided by the court system and the defense. Prosecutors already have far too many advantages when conducting a trial (too many jurors are "He's in the chair--he's guilty."). If they can't make a criminal conviction with those, then they shouldn't be prosecuting it in the first place.
- tyingq 6y agoOne issue is all the leverage prosecutors have. Things like charges that are deliberately inflated, or 3rd strike rules, defendants already on probation for something else, etc. Many defendants have to take a plea deal because the prosecution has lots of leverage.
- ur-whale 6y agoI wonder how other countries, where the whole "plea deal" notion doesn't even exist, manage the problem?
- vxNsr 6y agoAlready many crimes go unpunished, you’re proposing that nearly all “petty” crimes be consequence-free just think for a second how much worse Seattle or SF would get if the police arrested even fewer criminals and even fewer ppl would prosecuted for theft and home invasions? What you’re suggesting is a total breakdown in societal norms bec you see a problem and don’t understand the root cause so you just want to treat one symptom. Why not take some time to understand the root cause instead, and come up with a solution that doesn’t have immediately worse outcomes for literally all of the rest of society.
- ErikVandeWater 6y agoAlso, if somehow the courts managed to take all these cases to trial, for every trial that the public defender lost, she could appeal that they did not receive adequate representation. I don't think she would win those appeals, just because the courts act with spite to anyone who rocks the boat, but it would be correct; there is no way that any public defender could handle that many cases going to trial. They already aren't allotted enough time just to plea bargain.
- ddtaylor 6y agoThe courts are actually pretty capable of rubber-stamping guilty verdicts very quickly. They can also scale up and hire more assistant prosecutors etc.