Wednesday, June 17, 2009

Plea Bargains and Victims' Wishes

One of the realities of my practice is that most of our cases don't involve any victims. In spite of the "society is a victim" language that goes in the Presentence Report, selling drugs to a willing buyer and simple firearm possession offenses are victimless crimes. At least when compared to the state court heavyweights like murder, rape, robbery, and the like. What I'm saying is that when it comes to plea bargains, dealing with victims' issues isn't something we see most of the time.

But plea bargains, and the role of victims in consenting to them, popped up in a couple of different cases yesterday. One case comes from Oklahoma, which I heard about during a screaming heads exchange on Fox News yesterday in a hospital waiting room (as my mother pointed out, doctors' offices tend to have the TVs tuned to Fox more often then not), and involves the rape of a child. Specifically, a 4-year old girl.

Though the defendant pleaded guilty to 1st-degree rape, but the plea deal called for 19 of the possible 20 year sentence to be suspended. The deal was partly the result (as I think I heard on the TV yesterday) of the judge in the case concluding that the child victim wasn't competent to testify at any trial. But also, the deal was struck with the consent of the victim's family, who presumably wanted some measure of finality to the proceedings. Nonetheless, pundits and the general public are up in arms at the thought of a child rapist, in essence, getting away with it.

The other case involved Cleveland Browns wide receiver Donte' Stallworth, who killed a pedestrian in Miami last year. Stallworth was sentenced to 30 days in jail and two years of home confinement. The sentence seems exceptionally lenient given a dead human being is involved, given the longer term given to former NFL star Michael Vick for his involvement in dog fighting and the term staring Giants wideout Plaxico Burress in the face for (as Doug Berman puts it) "shooting himself."

As with the Oklahoma case, the family of Stallworth's victim agreed to the deal that produced the sentence, although it's a little clearer why - Stallworth came to a civil settlement (I swear I saw $10 million somewhere, but I can't source it) with the family.

The basic underlying question in both of these cases is should the wishes of the victims' families have any impact on the prosecutor's decisions with regards to plea bargains. After all, prosecutors represent "the people," not the individual victims (tho' they are only too happy to take up that role when it serves them).

While the family in Stallworth's case can accept a 30-day jail term for a homicide, what message does that sentence send to the rest of society? Does it have any deterrent effect? In the Oklahoma case should the state be more concerned with taking the chance of locking a pedophile away for decades instead of taking the easy conviction?

I don't know the answers to questions like that. It's one of the reasons I like being a defense attorney.

1 comment:

tanstaafl said...

Being a useless old geezer that has seen his share of idiocy over his lifetime, it is my firm belief that plea bargains are only useful to prosecutors. A harried and hurried prosecutor will plea down the most heinous crimes in order to free up time for other simpler cases where he/she does not have to exert any expertise. And they will.

And plea bargains are also useful to defense attorneys. Rather than face the uncertainties of the jury, why not take a plea when the result is liable to be worse than the offer?

I am personally opposed to any and all plea bargains as a matter of principle. Try the case, at 2 AM on February 29 if necessary, but try the case. Let the jury make its decision, and, if a guilty verdict is rendered, then let the judge make the arrangements for length of sentence.

To me use of the pleas bargain is the admittance of the opposing attorneys that they have no case one way or the other. I know I'll get hit with all the time it saves, the inconvenience to the jury, yada yada yada. But that is an excuse not a reason.

And the victim's family should have absolutely no voice at the sentencing. Neither should the convicted felon's family. Neither was involved in the commission of the crime and neither will be the one serving any penalty.

Yes, we do need more prison space --and using the prisons as prisons, not as spas while waiting out the greatly reduced sentences. Out of twenty-four hours in the day, at least 20 plus should be spent inside a cell with no contact with anyone. The other few should be used for meals--that would take up 1-1/2 hours, exercise, another hour, so that would leave 21-1/2 hours in cell, no tv, no cable, no newspapers, no talking, no smoking--it is a penitentiary in the truest sense of the word.

In over 60 years I have seen o0r heard of literally thousands of men and women return to the streets from jail and prison, only to return there within a year or less--primarily, I believe, because there was no punishment for their prior crimes.