A New Birth of Freedom


Somewhere on the way to the sea, South Carolina, United States of America
December 31
Major General
Military Division of the Mississippi (Army of the Ohio, Army of the Cumberland, Army of the Tennessee)
I root out and destroy secession, wherever it is found.


FEBRUARY 13, 2013 6:08PM

Plea Bargaining and the Age of Mass Arrests

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(Cross-Posted from Our Salon.com)

When I first started practicing criminal law, one of the oddest things I encountered and the thing that took the longest time getting used to, was the institution of "plea bargaining."  I had taken classes on plea bargaining while in law school, but here, we only studied caselaw governing the principles and rules concerning its proper and improper application. For example, when could a plea bargain be reversed on appeal? Why should an accused person be advised of their rights before accepting a guilty plea? Should they be allowed to waive their right to appeal before accepting a guilty plea? Should they be allowed to retract their guilty plea if the judge imposes a sentence that is much worse than the sentence previously agreed-to by the prosecutor and defense attorney pursuant to prior plea-negotiations?

The conceptual and issue-based studies of plea bargaining that I engaged in while in law school were all well and good, but nothing (aside from my studies of game theory and poker) really prepared me for the world of plea bargaining as it was practiced in both the upper and lower level criminal courts in the northeastern state where I reside.

Plea bargaining gets a bad-rap by many conservatives, is admired by judicial realists, is barely understood by the vast majority of liberals, and is strongly disliked by Libertarians as well as those on the Left (there's a difference between moderate liberals and the Left). As such, I believe that true reform on this issue can come about through some sort of a progressive-libertarian coalition.

During my first 6 months practicing criminal and traffic law, plea bargains were used in 99% of all my cases.  When I mentioned this to conservative friends and/or family members, they were enraged. In their minds, plea bargains enabled guilty people to go free. Conservatives, it seems, envision a world where courts lack the resources to adequately punish "bad people." My relatives thought that the prosecutors were making deals with defense attorneys so as to make the bad cases "go away" and thus save money for the state.  They blamed this lack of money on the fact that prosecutors, judges and public defenders allegedly made "too much money," and prevented "real justice from being done."

In this paranoid, ignorant, conservative worldview, child molesters, murderers, drug dealers, terrorists and a whole motley crew of anti-social deviants were being arrested, serving minimal time and being re-released into the arms of an innocent and unwitting public, due to the perceived "cheapness" of the court system, not to mention the alleged "laziness" of the prosecutors. When confronted by these insane allegations, I would play "devil's advocate," and ask my cousins and friends what they would do, if they had the power to impact the situation. They almost always replied that they would (a) appoint no-nonsense prosecutors who would "get tough on crime, and never let criminals out of jail, and (b) give the police extraordinary, extra-legal abilities to punish wrongdoers, "Batman style" on the streets, and thereby avoid the technicalities of the justice system altogether.

Here, in the minds of these conservatives, the only true protectors of the public are the "noble" police officers, who should presumably be able to use whatever means they can in order to keep "evildoers" away in perpetuity. To do this, the conservatives feel that the police need the ability to utilize gratuitous violence, the ability to circumvent the Constitution (which many of my conservative cousins think is silly document that has nothing to do with civil liberty), the ability to lie under oath, plant evidence, or even, as mentioned above, act like a vigilante and perform the role of judge, jury and executioner upon America's impoverished streets. Granted, many of my cousins are members of the Tea Party, but they reside in areas as diverse as Queens, NY and Arizona, so they run the gamut of conservative, white, working class consciousness.

Practicing criminal law in the bowels of dilapidated, working-class and lumpen-proletariat Rustbelt cities in my adopted northeastern home-state (I will not mention the name), not to mention in a plethora of tiny Bourgeois suburban townships and municipalities to boot, I learned another aspect of plea bargaining. Oftentimes, police officers overcharge defendants. Sometimes, this is done because the cop is just over-eager. On the other hand, it also works so as to minimize the chances that the bigger, more substantive charge can be successfully challenged. Sometimes they just do it, hoping to throw as many darts at the board as possible, hoping something will stick.

Now, many police officers are good and decent people. I have met countless good cops. But many police departments do have a culture of over-charging defendants, sometimes even with statutes that probably weren't even violated. Most of the literature I have read states that police officers are promoted, and that their careers are advanced, based on their conviction rate, i.e., the percentage of their arrests that successfully result in a conviction. Over time, some police seem to have realized, I think, that in order to maximize these odds, you need to issue a lot of citations and hope that at least some of them will stick.

But again, as I said above, this also has the unintended effect of ensuring, at least among a large portion of cases, that only the minor charges are dismissed, and that the bigger charges stick. Here, the attorney will go to court, get the minor charges dismissed (because often, there is no real basis for the Defendant to be charged with the infraction, or the charge is so petty it seems silly---like claiming that a cardboard pine tree air freshener, dangling from a rear view mirror, obstructed the driver's vision), and have him plea guilty to the substantive charge. This makes the Defense attorney happy (he got paid, and got 5 or 6 charges dismissed, so he can't be accused of malpractice), the police officer is happy (he got his conviction, and the prosecutor is happy (there was a conviction, a guilty party was penalized and the municipality avoided a costly trial). Everybody wins, except, it seems, the Defendant.

This is the dance that I see played before my eyes with great frequency.

One of the most horrible things I ever heard was told to me in a low-level courthouse. I was sitting in the prosecutor's office waiting for him to get out of court. It was just me and a fellow defense attorney, who was also, it turned out, the former mayor of the town. This attorney told me that the police officers were increasing their rate of traffic stops, because the current mayor ordered them to, due to fiscal challenges. I told the defense attorney/former mayor that I thought that was unethical and that I didn't believe it. He told me he was the former Mayor and that it was absolutely true and more common than most people believe.

He said that the new mayor told the officers that if they didn't increase ticketing revenue by like 15%-20%, they would have to start laying-off police officers. I thought this was outrageous. I still don't know if it is true or not. Perhaps this guy was just a politician and was trying to start rumors in an attempt to strike a political blow at his former political opponent. I don't know. But if this is true, if this sort of thing happens, it needs to be investigated, because it means that the police would have a conflict-of-interest in terms of their law enforcement activities. I really think that the Supreme Court or the American Bar Association should investigate this sort of thing to make sure major wrong-doing isn't being done. It really worries me.

Now, when taken in the context of what I mentioned above, namely, that some officers or police departments have a policy of routinely overcharging defendants, and in ever increasing volume, things start to take on a new light, and it is here where defense attorneys frequently get into very weird situations.

For example, I was once handling a municipal court manner in an affluent suburban town, and my client was charged with leaving the scene of an accident. He had allegedly crashed into a stop sign at a private, exclusive housing development and fled. The cameras were down and the gate was open, so there was no way to know who it was, and whether it was him. I got the case dismissed, but the interesting thing was that (a) the officer used a highly suspect method of issuing him the tickets [he had the same type of car as the alleged perpetrator (albeit a slightly different color, which he left out of the police reports), his license plate number had 3 similar numbers, he had a prior felony conviction (which in of itself should be meaningless) and the fact that he lived at this apartment complex 10 years previously. In addition to all the usual charges, such as leaving the scene of the accident, my client was also charged with crashing into farm equipment on agricultural property. I found this to be odd, because the alleged event was nowhere near a farm. I got the chance to talk to the officer about this (I went to court 10 times on this case, and spoke to the officer 3 times) and he said that he normally uses this statute when people crash into things, and that the whole department does and that if I challenge it, I will lose and my client will go to jail. He was very jock-like, aggressive and belligerent and tried to bully me, which doesn't work. I asked other defense attorneys the next day, and they said the department does, in fact, try to do this, but that it is a bluff, and they always fold when you call them on it.

Now, this raises a bunch of interesting questions in terms of what kind of information access police officers have, and why, as well as why they would utilize said information for the purpose of pressing charges. The officer and prosecutor played sort of a good-cop, bad cop game with me. The prosecutor was stern, but objective. He would leave the room and the cop would come in. The cop would tell me my client was guilty, based on his prior record and would go to jail and that I would lose. And that if I fought it, he would go to jail even longer. He said, "look at what I found from his record. Are you trying to tell me this kid is innocent? He's clearly guilty. I can tell just by looking at him. All you need to do is look at his record and you'll know he's guilty."  I kid you not. A police officer told me this. Now, I hope you all know that the rules of evidence and the US Constitution expressly forbid convicting people of new crimes, based on their conviction of a past crime, correct? Well, apparently this law was lost on the police officer I was talking to that day.

Now, the prosecutor was a decent guy and I doubt he knew what the cop was doing. Once I mentioned it to him, the police officer toned it down, but I could see in his eyes that he was pissed at me for "going over his head." The officer clearly didn't see the prosecutor as his superior and didn't relish taking orders from him. The municipal prosecutor was in a tough spot, too. He needs to be fair and impartial and has much higher ethical obligations and duties than a defense attorney (they have to disclose evidence that is exculpatory for the defense, they can't prosecute a man they know is innocent, etc...), believe it or not. But at the same time, he still needs to represent the state's interests. So, I am wholly sympathetic to prosecutors. They have a very tough job.

That said, I realized the cop was trying to use the prior conviction as a scare tactic, a leveraging tool. He wanted us to think that if we didn't plea guilty to some juicy crimes, that if we took the case to trial, the client would not only be found guilty but that he would have a big-time jail sentence, because of his prior record. The thing is, the prior record would have only been admissible had he testified in his own behalf. Normally, generally speaking, prior records can't usually be admitted. All law school graduates know this. But clients don't know this, and the other side sometimes tries to intimidate them into accepting a plea, by using scare tactics.

Over time, I also realized that while most of the tickets and citations issued by the police were legitimate, a decent portion were nonetheless questionable. Here, I would see countless defendants hire a lawyer, and this lawyer would go to court and talk to the prosecutor and a plea-bargain would be worked-out. Most of the petty, nonsense charges would be dismissed and the client would only plea guilty to the major charge. I started to wonder, why not just charge the guy with the serious charge to begin with? The defendants were dropping like $2,000 on a lawyer who would go to court to plea-bargain, and would often get dismissed those charges that were really bullshit to begin with, charges that the state knew they would have no way of getting a charge on.  You frequently see a guy stopped for speeding, or driving while under the influence of heroin, or something like that. They get hit with like 10 or 12 tickets. They go to court and the attorney gets most of the charges, like failure to wear a seat belt, obstructed license plates, obstructed rear view mirror, failure to use signals correctly, dismissed, but the major charge, the big-time speeding or DWI violation---these are pled out.

And yet, this is what's amazing. One can fight a DWI and/or speeding charge in a trial. Radar and Laser devices, which the police use to measure speed, have flaws. They need to be calibrated correctly. They can be damaged. They can be used incorrectly. The same thing with a DWI test. The machines can be used improperly. The machine itself can be malfunctioning. The person can have a medical condition that causes them to fail the machine-test, and/or a field sobriety test. But the thing is, many lawyers simply don't practice their profession in this manner. They just go to court, get the minor charges dismissed, and plea the guy out to the biggest charges. They spend maybe 1 or 2 hours in court and then go home. I never liked this method of practice and I find it to be highly questionable.

Things are slightly different with the higher level felonies.  Here, plea bargains aren't as informal as in the lower level courts. But you often see attorneys go to court with clients who are charged with a large number of criminal offenses. Now, many attorneys are actually very good and they do fight for their clients. Sometimes, a client is in a horrible situation and it behooves them to take a generous plea bargain. But the thing is, sometimes its not. And furthermore, you can get a better offer from a prosecutor if he/she knows that the defense attorney is preparing for trial and is willing and able to take it to trial on behalf of the client.

But the sad fact is that a large number of higher-level criminal defense attorneys don't do this. Some of them have a volume-based practice and they spend their days in a single courtroom representing maybe 5 or 6 different clients, trying their hardest to have each of them take a plea-deal from the prosecutor. Again, not all criminal defense attorneys do this. Most of them do not. But a sizable portion of them do, and they give the rest of us a bad name.

Now, the court system seems to encourage plea bargaining. It is seen as an efficient method of resolving criminal disputes. One legal commentator has said that when a case goes to trial, that this represents a "failure or breakdown" of the criminal justice system. I think this is total nonsense, but I think it depends on one's perspective.

From what I have seen, the War on Drugs and the massive increase in codified crimes, with each passing year, as well as the resulting arrest numbers,  are totally inundating the court system with ever increasing numbers of criminal cases. In fact, I think that the entire system of American Justice and the Constitution itself is threatened by this state of affairs, but that's a discussion for a different day.

Many scholars and legal commentators have stated that mass plea bargaining is encouraged for specifically this reason---if every case went to trial, like we see on TV, the system would become bankrupt. The fact of the matter is that more than 95% of all criminal cases in America today are resolved by way of plea-bargain (defendants confessing their guilt to a portion of the crimes, or a reduced charge of the myriad of charges they are charged with), rather than going to trial.  Prosecutors, I think, try to pressure Defendants and criminal defense attorneys into accepting plea deals as much as possible. When I go to court, and I drag a case out, because I strongly believe in my client's cause, Prosecutor's have made offhanded comments to me, like "wow. your practice loses money when you're away from the office, huh? I bet you want this case to end so you can go back to billing your hourly rates." And similar such statements.

Prosecutors know that private attorneys can lose money on a drawn-out case. But such things never matter to me, because my wife is independently wealthy. All that matters to me is the truth and the facts of my client's case. This has given me an advantage in my dealings with prosecutors.

I also think that Prosecutors stand to lose if they allow a case to drag-on, too. They have a certain number of cases they need to dispose of, in a given day. If a case doesn't plea-out, and keeps going on, the young prosecutor looks bad to his/her superiors. They increase the pressure, and the prosecutor, in turn, gets tougher, telling the defense attorney that things will be horrible for the client if they don't plea-out. This may be. Ultimately, its up to the client whether they want to take a plea deal. A judge can very likely impose a more harsh sentence upon a defendant, if he chooses to ignore a generous plea offer from a prosecutor, and chooses to "waste the court's time" by taking the case to trial, instead. 

And yet, I strongly believe that plea bargaining increases conviction rates for the prosecution, as well as for the police department. Its much harder to prove somebody's guilty in a trial, when you have to prove "guilt beyond a reasonable doubt," than it is when you confess to a crime, and then guilt is a 100% certainty, because it is admitted on the record. This is the essential truth that my conservative cousin and friends fail to recognize. Its not liberals that favor plea bargaining. Indeed, most liberals would much rather we return to the old fashioned days of "To Kill a Mockingbird" style trials, with all the inherent justice-dramas for peace and equity. But no, the system puts a premium on quick, assembly line confessions and the lowered sentences that sometimes come about as a result of these confessions. That said, is the lower sentence that much of a reward, one wonders, if the state would have had a really difficult time of proving guilt to begin with? 

The thing is, you really don't know. Its a game of incomplete information. The state shows you their cards in discovery. You have those cards, you show them to your client, and you also have the cards your client shows you. The state can sometimes bluff and tell you that you will lose unless you fold. Oftentimes, its wise to fold. Because let's face it, in terms of criminal law, the state is often in the same position as the House in a casino game----there is a higher chance that a repeat criminal offender may objectively be guilty of something than a non-repeat offender. But on the other hand, the state's hand may not be as strong as they think. Your hand may actually be stronger. And you need to know when your hand is stronger, relative to the prosecution, and be able to make this determination, despite the incomplete information that pervades the strategic encounter.

Furthermore, some scholars say that arrest rates and conviction rates are gradually increasing. Others say that the percentage of arrests and convictions based on bad evidence is also increasing, due to the prevalence of plea bargaining. The fact is, why should a police officer be over-cautious about having super accurate evidence, if he knows there is already a pretty high chance that the low-income, minority defendant will plead-guilty, pursuant to the plea-bargaining regime currently in place?

To use a poker metaphor, this means that there is an increasing rate of House wins, based on bad hands. It doesn't take a genius to figure out that this means there is a higher burden on defense attorneys today, than ever before, to adequately investigate the facts and the law. My two most recent cases were amazing wins, royal flushes, so to speak, because I knew that the police departments I was up against routinely try to win with crap hands and brazen bluffs.

When in doubt, I tend to call the bluff of the prosecutor and make them show their hand. If they really have a stronger hand, they should show me. If I think they have nothing, I will tell my client, and let him make the option as to whether or not he wants to plea guilty, or fight it. The decision is ultimately his. But the fact is, at the end of the day, I will be able to sleep at night. I will know that I represented the facts and the law, as well as the strategic situation to my client in the best way possible. That I didn't sell him down the river, the first chance I got, because I wanted to make as much money as possible, in as short a time as possible, by having him plea guilty on the first or second appearance without so much as reviewing the state's discovery.

That so many criminal defense attorneys continue to do this is not only an outrage, its an embarrassment and its something the bar associations should do more to fight-against.

I frequently annoyed my classmates in those law school Plea Bargaining classes I mentioned above. Many of them just wanted to become lawyers so they could make a lot of money. I wanted to become a lawyer so I could help people. They wanted to "study for the test" and they got annoyed when I asked the higher-level questions, like "is it Constitutional for people to bargain away their unalienable rights?"

The professor thought it was a good question. None of the other students, future attorneys, cared or even seemed to give a damn. I didn't care. I kept talking and I told my professor that I distinctly remembered that Thomas Jefferson wrote, in the Declaration of Independence, that men are endowed by their Creator (God) with certain UNALIENABLE RIGHTS, among them LIFE, LIBERTY and the PURSUIT OF HAPPINESS. I took, and continue to take these words very seriously. They are natural rights, holy rights, if you will.

That said, in terms of rights, what exactly does "unalienable" mean? We say it all the time, but few of us ever take the time to think about it. The word "unalienable" means that something cannot be given away, bargained away or traded away. It means that it is an inherent part of your very being. It is essential to you, as a natural functioning being. 

When we say that a right is "unalienable" we mean that when one is deprived of such a right, one is rendered incapacitated as a human being and citizen in the democratic process in a seriously profound and fundamental way.

Is the right to a jury trial an "unalienable right?"

Is the right to have a judge hear the facts of your case an "unalienable right?"

If these things are unalienable rights, then why do we punish citizens who wish to exercise them? Are they being punished if we maximize their sentences if they demand a trial, if they ask that a judge hear all the facts of their case because they honestly and truly believe that they have a genuine defense? Is it wrong for a citizen of a democratic republic to have such a desire, especially when such a desire is fully enshrined in our principal foundational document?

If the right to a trial and the right to have a judge hear the facts of your case are, indeed, unalienable rights, how do we permit Americans to trade them away in exchange for lower sentences, pursuant to the "plea bargaining" regimes that currently pervade our republic?

We overthrew a lawful government in 1776, because we believed it violated these rights. We had a revolution and spilled blood for these rights. We have fought countless wars over the past 200 years, almost all of them for the sole purpose of preserving these unalienable rights.  We talk so much and fight so much over these rights, they must certainly be important, right? They are the foundational principles upon which our country is based. They are the ideological bedrock principles upon which our system of government derives its legitimacy. Without these philosophical and ideological concepts, and without consistent adherence to such foundational principles, no government can long maintain the consent of those they govern. Because, lets face it---democratic government absolutely requires the consent of the people. There are some police officers who may disagree with this, but I firmly believe that without popular assent, no system of laws (if seen to be unjust) can long prevail.

Do we need to change our laws?  Must we exchange the adversarial system for a Continental style inquisitorial system, where the judges are required to hear all the facts of a case, before they give a sentence, regardless of whether a defendant enters a guilty plea?

What I do know is that a judge is a far more trustworthy and accountable guarantor of the rights of criminal defendants than a prosecutor, especially a prosecutor in an adversarial system.

The undeniable fact is that our current plea-bargain system took a traditional adversarial system, where justice and fact-finding was evenly balanced between the prosecution and the defense, and it gave disproportionate power to the state, which continues to act in an adversarial manner and in a way that prevents crucial information from reaching the eyes of the judge. Traditionally, it was the role of the defense attorney to present this information to the Judge or jury. But plea bargaining, and the confessions it coerces (and I do believe it encourages a soft form of self-interested coercion), prevents the defense attorney from exercising his traditional function in the court, thus preventing a high volume of crucial, exculpatory facts from ever reaching the eyes and ears of the court. This is because, in the plea-bargaining scheme, the defense attorney makes his case to the prosecutor, who, in turn, decides if he likes it or not and what kind of deal he will give the defense. Here, the prosecutor, rather than the judge, becomes the informational gatekeeper.  This is something that I find to be absolutely unacceptable.

Either we balance the scales of justice by reforming the adversarial system, or we do away with it entirely by adopting the continental-style inquisitorial system, which will give all the power to the judges.  This is something the Founders did not desire, but if the current scheme of things continues, I see it as the only viable alternative, if we are to remain true to the more important, overriding principles of justice, fairness and Constitutional rights.

The American legal system is in desperate need of repair.  There is a place in our system for plea bargaining. If the situation requires it, a Defendant should be able to negotiate a lower sentence or charge, in exchange for a guilty plea, but it should only be utilized after a proper examination of the law and facts of a given case.  This is not happening, though, for the reasons I mentioned above and many innocent people, I believe, are being coerced into taking guilty pleas, because they think they will receive a harsher sentence if they choose to exercise their God-given Constitutional right to a trial. 

This constitutes a major violation of the principles underlying our Constitution, I believe, and its something that our citizenry must address. Constitutional violations that impact the criminals of today are invariably visited upon the innocent of tomorrow.  The precedents that are established in prosecuting a drug offender can just as easily be used against a political dissident or protestor tomorrow.  And this is my great fear. 

Justice must not conform to the law.  The law must conform to justice.

And if the law does not conform to the principles of justice then we must change the law, through the democratic process so that the law more clearly and precisely reflects the natural law and will of the people. This is the essence of democracy.

Democracy doesn't end with the Executive and Legislative branches of government. The voice of the people isn't muted in the halls of the judiciary. We have jury trials for a reason--the people, ultimately, have the ability to decide questions of fact, in countless cases. They even have the power of juror nullification. The laws that Judges apply, the statutes that prosecutors enforce---all of these are manifestations of the popular will.

And if the popular will, through new legislation, changes these laws, then I feel that the principles that underlay our Constitution can be salvaged and given a new breath of freedom---that Justice can once again be achieved---just as the Founding Fathers intended.


PBS has an excellent television program named Frontline. A few years back they had a very good show that discussed plea bargaining, and what it was doing to the American Justice System. The PBS website has broken this program into four small segments, which you can view online. They also contain a number of online interviews with leading legal experts and academics regarding this recent development in American law.

I will cut/paste links to this episode, as well as some important academic/scholarly articles from both sides of the political spectrum that discuss plea bargaining and what it means for the American Justice System.







1. The Case Against Plea Bargaining, by Timothy Lynch of the Libertarian think tank, the Cato Institute.


2. "Personal Failure, Institutional Failure and the Sixth Amendment," by Albert Alschuler. From New York University Review of Law and Social Change, Volume XIV, Number 1, 1986, pages 149-156.


3. "Plea Bargaining Outside the Shadow of Trial," by Stephanos Bibas, Harvard Law Review. June 2004.


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Very informative post. I really like the British system where the Crown pays a private law firm to prosecute the case. I think this greatly minimizes perpetuation of this type of low level corruption.
I know you don’t want to hear this RW but at this point I’m all for a shift to the continental system. Let the judges hear all the evidence even in the plea bargaining cases. I watch the criminal justice shows on TV and I’m shocked at the convictions in jury trials sometimes of the flimsiest of circumstantial evidence. Lets face it, put together a jury of your relatives and mine and add a generous helping of watching to much Law and Order and other police state approved cop shows and Gandhi's getting convicted for aggravated assault simply because his skin is brown, heaven help anyone with a prior felony record. I don’t care if they were having dinner with Cardinal Edward Egan at the time the offense was committed.

As usual from you this was a highly informative post (you are always worth a careful read) but I think you should have went more into the disparity of sentences when you take a plea as opposed to going to trail on a felony. That’s something that need be addressed.
it might be worth while to think about what a 'right' is, or should be. a reference to the 'declaration of independence' rather poisons any discussion, since it was written by a man who believed very little in it.

the american legal system began corrupt, if justice involves treating each person with respect: the constitution was written by people who despised the common man, and did all they could to protect the power of wealth, with great success.

it has in recent years become not only corrupt but actively dangerous, habeas corpus and right to trial are discarded, and foreigners have no right to life even.

working in the american legal system has become an arcane trade, generating results quite independent of justice or even the pretence of justice. as with prostitution, social status is very low and only high rewards are compensation.
The system is a horrendous mess. I can't even imagine what your day is like. And, frankly, I don't really want to know. I'd probably have to commit myself for treatment. It's certainly a fact that cops make arrests in order to maintain employment. How can they not? But then Richard Zitrin wrote a book and surveyed a large number of lawyers and found about 70% of lawyers admitted to cheating their clients. Plea bargains are often used to put people in prison who committed no crimes in these mass police/DA roundups as the ACLU exposed. Who knows exactly what every institutionalized abuse is. I'm sure the ACLU would be a good start at documenting them.

Rather than laying blame on any particular person, I think we must recognize this system is not working. It has been corrupted by two centuries of self-interest just like everything else. There are so many institutionalized conflicts of interest in this system that serving justice is almost an afterthought. Sometimes, it's necessary to allow the old growth forest to fail in order for new growth, vitality and ideas to grow.

I would encourage some out of the box thinking. That is, fire half of the police officers, decriminalize any victimless or nonviolent crimes and instead institute other forms of punishment/reforms, take political appointment out of the DAs office, replace police Internal Affairs with a citizen-led police investigation organization, ditto with replacing the legal boards in any state with a citizen-led review board (too much conflict of interest in the self-regulation of both the attorney and police institutions), kibosh federal prosecution quotas, rewrite and simplify the laws and allow any American who can pass a psych and anger management exam to have a conceal and carry. Return the people to first responders. That doesn't mean we have people making arrests. It means we have people defending themselves rather than asking the state to do it.

These may or may not work but this system is morally-bankrupt and doesn't work. It is rife with self-interest and institutionalized corruption.
I was thinking about doing a post on this subject soon although it won't be anything like this. This is better informed than what I intend to come up with but I expect to make what I consider a contribution, however you judge it. ;-)

I can tell you that even if there isn't a clearly defined quid pro quo as you implied about increasing the amount of ticket they issue for revenue purposes I can tell you that it happens one way or another, perhaps by a wink and nod variation. I doubt if many people would doubt this.

Jack is right about the disparity of sentences deserving more attention but it is just one of many issues that also deserve more attention and they can't all be done in one post by one person. another one of those issues is the practice, intentional or not, of using pretrial detention for poor people as an incentive to plea. This is especially common when it cmoes to relatively minor charges that might seem to justify high enough bail to make it hard for many people to raise in the poorest areas. the result is that eventually they offer a deal plea guilty and get time served or go to trial ..... eventually and stay in jail.

No official quid pro quo on this that I can testify to but I have no doubt that intentional or not it is common.

This isn't a justice system it is a control system disguised as justice.
No words for how fine I found this post. Sad to know that you are a major rarity. Your trust in judges might be a local thing. In L.A too many judges have no interest in fairness or justice. In my case, corrupt LAPD detective John Gregozek,failed to convict me on 7 fraudulent charges. Yet, he now is the protector of Mila Kunis and Halle Berry . Though he spent thousands upon thousands of the tax payers money on 18 man raids , illegal 31 day jailings ,12 days of trial , very costy and evil competency schemes , 7 search warrants, and two long years of a needless and very malicious prosecution, he is doing just fine. Just found out that the trial prosecutor was moved to Van Nuys and hope that was a demotion. Los Angeles City Attorney, Katherine "Katie" Ford, was craven. She absolutely knew I was innocent and only cared to win. She lied to the court repeatedly and without shame. It was too appalling a thing to witness. Thanks for this post. How I wish it would go viral.
In my personal opinion, the Judges are among the most trustworthy, objective and intelligent people in the justice system.

The problem is that, traditionally, they were the bedrock of the Anglo-Saxon judicial system, going back to the days of Old England.

The Legislature has, for the past 40 years, been overriding this in the United States. And they have been doing this in 2 ways that I find unconscionable.

First, they are passing mandatory sentencing guidelines that really restrict and bind the hands of judges. I have had classes taught by judges and/or former judges. They have told me that the unique facts of a situation, in their mind, warrant a much lower sentence than the law allows. But their hands are tied by the statute, which is passed by the legislature. The electorate keeps complaining about "activist judges," so the politicians pass laws that limit judicial discretion. Many of these laws force judges to impose strict statutory penalties. Many judges don't like this.

In addition, the prosecutorial branch is, in many ways, political. They represent the state. The chief prosecuting officer for countless political units (counties, cities, municipalities) are directly appointed by the chief executive with legislative approval. In the federal government, the Attorney General is a member of the President's cabinet. The same thing applies with Governers and their attorney generals.

The prosecutors, thus, are sort of, in a way, responding to the law enforcement concerns of the electorate. When the executive and legislative branch increases the powers of the prosecutor, by way of passing new laws, such that information is not relayed to the judge, this has the indirect effect, in my mind, of creating a situation where the Legislative and Executive branches are overriding the power of the Judiciary.

This is inherently improper under a proper constitutional, division of powers scheme.

My argument really isn't against individuals or personalities. I am above personalities and individuals. I am interested in abstract philosophical ideas and systems analysis. How complex constitutional systems function.

We must always remember, though, that people are animals. They will always work and operate in ways so as to advance their own interests. This is an inherent truth. Its why we have divided government. We must keep our government divided and not encroach upon the judiciary. I think the plea bargaining and sentencing guidelines have the net effect of a judiciary encroachment.

This is in the abstract, of course.
One of the biggest mysteries in American society is police work. I was fascinated by it before I joined the LAPD, and was curious about a look inside. Experience on the department only amplified that notion. The lack of understanding about how the system works is universal. I havenot finished reading this post, which I'd like to mention I was asked to do, but I want to make certain points while they are fresh in my mind.

First, I think most people conflate certain important concepts which need to be segregated. One can see into another person's thinking as they conflate things like right and wrong with legal and illegal, guilty and innocent, moral innocense and legal innocense, and so many other very important concepts which should remain separate and distinct from one another. Citizens fall victim to it, and ll apsects of government take advantage of that. From time to time, social justice efforta try things to mitigate that like Miranda, but even that is massively misunderstood. Lawyers and cops use it against citizens. Businesses use it against patrons and each other. Cops use it against lawyers. Lawyers use it against cops, citizens, and each other. The myths and misunderstandings massively outweigh and outnumber understanding of how the system works.

Keep in mind, when I say, "use against", I mean that in the legal sense. The system is competetive and confrontational. Rights are not what most people presume, and they are essily circumvented legally. Legally. People on all levels and in all areas of specialty think emotionally and are taken down with that weakness. People consent to searches because they think it indicates innocense. It doesn't, and it is not even relevant, yet people can be counted on to contribute to their own prosecution, even lawyers. This is a psychological desire to avoid hassle. Make a bond with a human. What people fail to recognize is they are not being searched by a human. They are being searched by the state. This also applies for the far over used myth of most cops being stupid brutes with the intent to punish and bully. This is grafting a human motive onto an operative of the state. While it may be true that the state may want to intimidate, punish or bully, the manner and purpose is entirely different from how the person would benefit from it, if at all possible. Presuming or defending against one is totally missing on the other.

(I'm just getting warmed up...)
Here is a misconception that, while not heard often, is far, far, far from accurate. It even questions itself. This one is courtesy of TimingLogic.

"It's certainly a fact that cops make arrests in order to maintain employment. How can they not?"

This is how a lot of myth making is done. It starts with "It is certainly a fact...", and it ends with "how can they not?" This is pure speculation, and it is wrong. First of all, arrests are not most of what a cop does. Cops do most of what they do to prevent situations where arrest is necessary. Life is not 1-Adam 12. Making arrests is dangerous and time consuming. The profession that makes arrest strictly for profit is a bounty hunter. They do this as a main function. That job is vastly different from the job of a cop.

Second, cops are members of unions. Arrests do not guarantee employment. This is jst one example of a massive misunderstanding of the function of a police officer, and the action of law enforcement.

The closest that comes to being accurate is traffic enforcement, but traffic enforcement is a money maker for cities, not individual officers. Cities to ask officers to generate a certain level of traffic enforecement, but this is like going out and grabbing a blade of grass. These do not have to be cooked up. They are ubiquitous. Traffic enforcement also has a demonstrable effect on protection of property, minimization of civil litigation in courts, and exposure to other hidden criminal activity, so it is in the interest of municipalities and states to monitor traffic, and the highways. Like I said, this is the closest to the arrest for profit myth, but still falls short of being true on the individual level.
Bill: I'm glad you are reading and responding to this. I have actually had a very difficult time trying to ascertain the motives of the police. I've read alot of progressive literature about it, and I've spoken to various lawyers about it.

I totally understand defense attorney motivation, prosecutor motivation and the like.

Police Officer motivation is something I'm still in the process of trying to ascertain. I have an impression of it, am getting glimpses of it, but its still hard to discern.
You are correct, though---traffic court has this more. The NY Times, though, did have a recent article about quotas in police departments. So, I'm trying to figure out how this plays into all of this, if at all. Many missing pieces to the puzzle.


Thing is, I sometimes have clients with very good cases. Strong evidence regarding innocence, and the police don't want to fold. They play chicken. The prosecutor is often much more willing to fold and either dismiss, or downgrade the charge. But the police, in many circumstances, are the most reluctant to accept the downgrade. Often, the prosecutor has to take the officer into the back room to persuade him to accept this.

I am still trying to figure out why this is. Why are they so invested in the charge? What do they have to gain? Is it merely pride in their work? Or does it help/hinder them to have a conviction based on the original charge?
And then other lawyers and myself wonder, perhaps the officer has a quota and he doesn't want to lose this case, because he will fall behind in his monthly quota. Sometimes it totally boggles us why an officer would fight so hard for a conviction with such flimsy evidence.

I heard a lawyer telling me that he had a diabetic going into Diabetic ketosis. He was hypoglycemic, deadly levels of acetone were building up. The physical conditions mimic intoxication. The breath smells slightly like alcohol. There's also a chance that the Draeger Alcotest (I don't know about normal Breathalyzers, like they use in California) could misread acetone as alcohol. Also, that the acetone could metabolize into alcohol. I've read it both ways.

Anyway, the Defense had an expert and they were going to get the dismissal, and the officer went ballistic and wanted a trial. It baffled the lawyer, because he thought the officer would be happy that he wouldn't have to waste all his time in court.
If a prosecutor takes a cop into a back room to sell a charge reduction, as it were, it has nothing to do with the officer's "acceptance", as it were. This is just a strategy for prosecution. This leads to another common misconception. You referred to it a bit in the over charging thing.

When an arrest is made, a cop writes what most people know as an arrest report. This is a generalized term made popular from television. The LAPD uses what is called a "P.I.R.", preliminary investigation report. The cop functions as a professional witness, as it were. The cop in the state of California brings his level of legal training, at scene eyes and ears, and the start of the chain of custody for contraband. (This is being brief).

The cop then submits the P.I.R. to the watch commander. The P.I.R. is written with a charge from the penal code to provide context. (Not all crimes are evident, even big ones.) Then the watch commander selects a crime to submit to the City Atty or District Atty. (Watch commander is usually a Sgt or Lieutenant.) It is the City attorney who makes a formal charge for the arrest...or rejects it entirely. The cop, and even the cops at the supervisors desk to not determine the charge. The City atty does. Most times, even when the elements are plentiful to make the formal charge, the City Atty declines to charge because he is too busy, or lacks funds, or a whole host of other practical matters. Cops do not have the wherewithal to overcharge and get past all hurdles, especially budget hurdles, which tend to be the biggest of them all.

If a prosecutor takes a cop to a backroom to huddle, it is probably to suggest a way to testify...nothing more.

This is a dirty term in every area that I know of. Here is how they work.

First, cops do not have conviction quotas. Whether a prosecutor drops a case, or reduces a charge or whatever has no impact whatsoever on what a cop must do.

In roll call, supervisors give the local situation with regard to crime trends, major events in the city, special persons of interest for a variety of reasons, and continuing education of a variety of topics, which tend to revolve with the calendar. In that roll call, supervisors will give certain directed enforcement goals based upon things happening in the area. At higher levels, strategies have been determined to reduce this or that for whatever reason. Statistics are crunched from previous months (deployment periods), and goals are adjusted.

At the bottom of an LAPD log sheet, which each officer must maintain on a minute by minute basis, includes what is called a "recap." This is a statistical summation of a shift. These include things like felony and misdemenor arrests, traffic citations. Juvenile arrests, number of locations visited, and the resolution...and a number of other things. When a statistical bubble in crime is observed in one area, a course of remedial action is taken to ameliorate that crime bubble. These trickle down to individual officers as goals per shift or deployment period. Boom! Quota. It is a numerical/statistical means of dividing up a very large job. It is not salesmen dividing upm a territory. "Quota" has many negatives attached to it, but it is mainly a term used to refer to this process. It is not sinister. It is also not strictly required for pay, or to maintain the job.
Now, you are speaking purely in terms of big city police departments, correct?

I routinely see Defendants in municipal court with 10 charges, and these are all from misdemeanor drugs, assault, to municipal code violations, etc...

In some parts of the northeast, you have very some states with strong municipal governments, of roughly 10-15,000 people. State government is very weak, as are the county governments.

Often, there really aren't any big police departments, outside of the cities. These municipalities are townships and have their own police departments, fire departments, prosecutors, etc...Its very wasteful, but they are like independent fiefdoms.

For misdemeanor drug offenses, I almost always see the statute written on the hand-made citation given to the Defendant, along with his traffic violation (if there is one). Its done right there, on the spot. Of course, there's all the other stuff about the officer needing to be a certified drug recognition expert, getting lab reports, showing influence at the time of arrest, etc....

But I do see what you're saying as being true for felony matters in county court. I do think, though, that things are less formal for misdemeanors and traffic violations in municipalities. Here, oftentimes, the court is inside the police station.
Chatting with you, Bill, impresses me a great deal regarding the professionalism of the LAPD.

I think in the geographical region where I practice (I don't want to get into details) the only police department that is this thorough, is the State Police and Port Authority. There is a huge difference between the way they make reports, and the way local townships make their reports. You can really see a difference in the policework, too.

Does the same situation happen in California? For example, does the LAPD have higher professionalism than, let's say, other regions of the state, or when compared to State Police or the Highway Patrol?

I do notice, though, that the municipalities in CA are much, much bigger than those which exist in, lets say, Pennsylvania, NJ, Delaware or Maryland. They seem to have large, incorporated areas.

Where I'm at, each municipal police department has around 20-50 cops, give or take. But you can drive 10 minutes and be in another municipality in like 5 minutes. Its insane.

I wonder if centralization has a positive impact on professionalism and standards?
I try to place my statements in the context of my experience always, but I will say this, on the broader question of crime, social justice, rights, or Aerican society in general, that which happens in the big cities and their departments are more determinative than little hamlets somewhere for a variety of reasons. 1) it effects vastly more people. 2) The parger depts/cities determine strategies and tactics which train and inform the smaller ones domestically, and in other countries. 3) a full description of how a criminal justice system works is better demonstrated with all of the parameters, especially budgetary, which tend to get overlooked.

Myths arise in certain places, and get smeared like syrup at a pancake house over an entire profession, and millions of individuals. This leads to the massive misunderstandings of the reality that exists within blocks of everyone's homes. People hold very firmly to misconceptions. I was a lifeguard in highschool. When I did this at a base pool in the Marines, a person approached me as the lifeguard on duty and said he thought I was black, but since I could obviously swim, he asked me what my ethnicity was. He held more firmly to his misconception that his ability to see. People's view of cops and police work function in exactly the same manner.
Bill: that's true about hamlets vs. big cities. On the other hand, in states like New Jersey, the whole state is flooded with people. Its the most densely populated state in the country. Far more densely populated than California. On the other hand, its cities are small. The whole state is an example of suburban sprawl.

That said, the state was recently notorious for its racial profiling policies.


I'm finding this conversation with you to be very enlightening.

Now, how do police officer preferences factor into plea bargaining? Also, what's your take on plea-bargaining in general?
The LAPD is a very professional police force with extremely high standards. People tend to believe the myth, which is profoundly different.

As I was leaving the USMC, actually a year before I left, I went looking for my next adventure. A friend who was an Atlanta cop turned me on to the cop thing as an option. I was intrigued. I liked Atlanta, but wanted to return to Southern California, so I looked at agencies there. I applied to LAPD and Newport Beach. I was the number one recruit for both. They had me in to persuade me why their dept and lifestyle should be my choice. I was leabing toward Newport Beach, for obvious reasons. I had lived there previously, planned to when I left the LAPD, and way fully into being in khaki on the beach for the foreseable future. I went to the LAPD meeting as a courtesy.

Once I was there, an LAPD detective Patin explained to me what the cop job was, and why I wanted to do it in the dirtiest, grimiest, most active place possible. He was persuasive. After having done the job, I can also say, he was right.

People think of cops as a bunch of donut eating fat bastards. In some places that is true. It is/was completely false in L.A. They reject 997 out of every 1000 for entrance into the academy. Getting is is tough. Then you have to make it through. Then you have to have the guts to do your first day on the job. Then you have to pass muster among senior officers. It is an extremely difficult thing to accomplish. I would love to see anyone try. I would also welcome taking anyone on a tour. The myth is far from reality.
Plea pargaining:

Consider being in a cabin on the beach. You know how the tiny bits of dust which exists between gains of sand, and is almost invisible, but gets airborne when the sand is kicked up, and coats everything in a matter of hours? That dust is what most people think of crime/criminal justice. They think you get your broom and mop and just sweep and mop and have a clean floor. Done.

Reality is more like all the the regular grains of sand on the entire planet, and every other planet in the solar system...as crime. Now, go manage that.

What happens is big earth movers get used to move cases from one column to another. That is the basic purpose of plea bargaining. The resources that it would take to have a clean floor is incomprehensively huge. So we don't try. If an inddividual wants justice, he buys it in the quantity and size that suits him. If he can't afford it, he gets what is doled out.

This predates the U.S. This predates most of western civilization. This predates actual money. This comes from a time when credit (before bartering) and religion were the main regulators in civilization. Civilizations which go back more than 5000 years had credit systems which were the de facto criminal code. Being brief here, when individuals became overwhelmed with debt, they could be enslaved. The pressure release on this was a religious function, and the selling of ones family members (especially daughters) into prostitution. The forgiveness of debt became known as "jubilee."

Society constructed in this manner gave rise to what we know as rights, money, and even plea bargaining. People are and have always been seen as comodities, whether one's morals allow them to see it or not. Our social systems and legal systems commoditize actual humans, and have for thousands of years. Plea pargaining is a modern incarnation of that commoditization of people vis a vis the state. And as stated earlier, when an individual has the means to replace money for the commodity of his corpreal self, that much "justice" is procured by that means.
That's interesting. I've heard that the NYPD has a similarly rigorous process for new recruits. On the other hand, the NYPD is a bit bigger than the LAPD (I think its roughly 40k compared to 10k), so I don't know if this makes them less selective. Perhaps the LAPD is more selective, because they have fewer numbers? I don't know.

In a state like PA, there are numerous police academies. The big cities, like Pittsburgh and Philadelphia, have their own police academies. Then each of the counties have their own police academies. There is also a general "Municipal Police Academy," located in Hersey. Most of the state's municipal police (the officers most people not living in Philadelphia or Pittsburgh meet) go to either the Municipal Academy or the County Academies.

Of course, you also have a general State Police Academy.

In a state like NJ, you will only meet, generally, small town municipal police. Its a highly populated state, cosmopolitan, advanced, culturally just like Philadelphia and NYC, but its suburban, industrial and strip-mall sprawl, pretty much non-stop, on highways, from south to north. You may meet the State Police on the Turnpike, or Port Authority on a bridge, but the local police departments all have a unique small-town police department culture, sort of like they exist in Alabama. This, even when you can see the outline of skyscrapers across the river in the distance.

I'm just trying to say that, due to political divisions in the northeast, you may not have "cities" as an administrative unit, but that doesn't mean the folks are rural. The Jersey Shore isn't rural...lol
I don't see how a plea bargain situation would touch on a police preference at all. Generally as officers we were discouraged from having a rooting interest in what happened to particular criminals or suspects at all. Most arrestees get released at one level or another. We were always advised to not follow cases through the news. It only led to frustration, burnout, and potential criminality on the part of the officer. There is no good purpose for following cases, and on a job like LAPD, you tend to be far too busy to do such a thing.

Prosecutors are evaluated by the number of convictions that they get. Federal court is especially so. Federal cases go to trial in maybe 5% of the cases. 95% get plea'd out. They crank out convictions in conference rooms. Cops have zero function, and virtually zer interest in that process. Frankly, the crush of the job is determined on the street level. The decision many times is whether or not to physically pursue someone who lives a life of day in and day out crime. Wiser, older officers typically say to younger officers, "we'll get him tomorrow", when a suspect works a particular type of advantage on a given day. You'd be amazed how often this is true. The next day, they are out doing something similar, and easier, and more safely snatched.

If an officer were focused on outcomes in trials, you would not see calm, careful selection on the street level. The two ways of seeing the volume of work are at odds with one another. Are there cops who get involved with individual cases and criminals, yes. Did I know or work with any? Yes. Several come to mind. They were usually driven insane by the job. One such dude I worked with on the night that Rodney King was arrested. He spent the night sending "gorillas in the list" texts on the MDT to some of his buddies in various divisions around the city. He was subsequently investigated by the Christopher Commission. They called me to investigate him.
Things are a little different where I am located.

When I go to municipal court, there is often a Police Department liason officer.

Pro Se Defendants plea bargain with the Municipal Police Liason officer DIRECTLY.

If you have an attorney, he bargains with the Municipal Prosecutor.

I have seen it hundreds of times where the liason officer throws a hissy fit when the prosecutor wants to give a downgrade to the defense attorney. The prosecutor will sometimes do it anyway, but the liason officer will be mad.

And this is municipal court. And it has nothing to do with trial. Usually, the only trials you get in municipal court are for DWI, or for shoplifting when there are immigration consequences (guy has a green card, but wont be able to become a citizen, because its a crime of moral turpitude).

I'm seeing something a little different in the northeast. The police, in certain jurisdictions, play a much bigger role in the local level (where there is traffic court and misdemeanors).
NYPD and LAPD operate on two distinctly different types of policing platforms. NYPD uses what is called the "Eastern model" and LAPD the "Western."

Police "officers" are public office holders, and the older/Eastern model placed them in neighborhoods (precincts) and they functioned like local politicians. They are your friendly neighborhood officer, typically known by name, and frequently grew up in the area. This has its obvious advantages in knowing the community.

The disadvantages are less obvious, but easy to see when explained. This old model led to the rampant corruption that most people assume applies to all forms of policing. Local office holdes become power brokers and influence peddlers. This essentially becomes a state run mafia organization. There is massive nepotism is systems like this which leads to massive departments like NYPD. It also leads to competeing/warring depts like Boston's State Police versus the City police.

The Western model was designed to minimize the systemic corruption that comes from the Eastern model. (Incidentally, San Francisco uses the Eastern model.) The Western model uses smaller forces which cover larger areas with more mobility. Person to person connection is minimized to minimize influence and corruption. (This model is also used in major corporations.) This is a brief and simplified explanation, but it should shed some light on the notion that policing is not monolithic. It varies in numerous ways depending on region and priorities. Pre- 1940 LAPD, before Chief Parker, was much more Eastern. It also had the typical systemic corruption. Parker reinvented the LAPD into the roving military force that it is. It is vastly different from NYPD and SFPD, and others of that model.
And of course, in the places I'm talking about, the municipal court is often right in the same building as the police department. They are in the same municipal government building.
Bill: your explanation of the differences between Eastern and Western style policing is the most informative and enlightening thing I've learned all week.

This is something I need to research some more. This may mean that there are totally different approaches to criminal justice, in general, in the West and in the East. Different relationships between prosecutors and police, etc....

Based on what you just said about the pitfalls of the NYPD's original conception of Eastern-precinct based policing, places like PA, DE, MD and NJ, which have this large municipality based police force may fall victim to the same sort of tendencies.

They may not have the same over-arching central command structure of the NYPD, but perhaps the decentralization that allowed certain abuses to persist in the Eastern precinct culture, continue, because of the pervasive municipality-based, village, township, borough, boro, town-based policing you get in the northeast (once you leave the city limits of the big cities).

Very, very interesting.
Good education. Rw asked me to read this exchange.
Rw and Bill,

As for traffic tickets. I see a large number of trucks, which could be because that's what I'm doing now, getting tickets. I think that a large part of that is because they write us for "no point" items. They know that it will not endanger our CDL and that it's not cost effective for us to fight it. What it would cost us to return to a city, get to the court house, and lose a days pay is several times more expensive than paying a fine.

The other part is that trucking companies have to be notified of a ticket. I got one in my home time so going to court is just another day at home. When I got to court the trucking company that I worked for had plead me guilty and paid the ticket. They then deducted the fine from my check. To get it over turned again was way more expensive than the fine.


My brother was a Phx PD officer for years. I have to agree with you on the way most cops act and do things. They also had to do the recaps for stats of what they did for the day.