Yes, anyone who is charged with something serious should go to trial. It's expensive, but you're locking a person in a cage with criminals for years of their life (incidentally to be repeatedly beaten and raped, but we can leave aside problems with the CJ system that aren't explicitly plea bargains for the moment), not choosing a floral arrangement.

I agree the extreme and severe punishments exacerbate the problems with plea bargains but plea bargains are bad by themselves, in isolation, even if other punishments are fair.

The government should NEVER be in the business of giving people special treatment and rewards for waiving their fundamental rights because it's more convenient for the government. Everyone has the right to a trial, but people who exercise it are punished. Which means people don't REALLY have a right to a trial. Imagine if the government promised it would tax people less if they chose to avoid engaging in political speech critical of the government. This case is identical to a plea bargain. Except it's less serious, since it's about money, not about jailing somebody.

I'm okay with someone pleading guilty and throwing themselves at the mercy of the court and asking forgiveness. Then it's up to the human beings in the trial to decide how to handle it. Creating a formal system where you do this in exchange for something tangible? Before a trial? No. Innocence or guilt is too important to be bartered like that.

I still don't see the logic. You're okay with

- someone pleading guilty in return for an indefinite punishment, but not a definite one, and

- someone getting a more time in the horrible, horrible cage because the trial found them guilty but not less because they realized they would lose

- someone getting mercy from the court for pleading guilty, but not "getting special treatment and rewards for waiving right to trial" (which a guilty plea is)

- someone leaving their fate in the hands of a capricious, unpredictable jury, but not leaving their fate in the hands of a capricious, unpredictable sentencing judge for the guilty plea

I just don't see a consistent preference ordering that spits out "plea bargains should be banned".

None of those points really have anything to do with plea bargains -- they are just bad things about the CJ system.

-If the CJ system gives out indefinite punishments for trivial things, that's a problem unrelated to plea bargains. The solution isn't to make things even worse by allowing prosecutors to abuse the extreme sentences to force people into (sometimes false) confessions.

-Why should someone get years of freedom over someone else because they were law-savvy enough (or paid someone law-savvy enough) to realize they were going to lose and gave the prosecutor a sweet deal to make his job easier? Why create an even more uneven distribution of sentences based on who understands the system or can pay a lawyer to understand it?

-The court is set up to be run by humans; they can take mercy on whoever they like. We've chosen to set up our laws that way and I'm pretty ambivalent about whether or not that's a good thing. But even so, that's after the court has found that they are guilty. Mercy can only be applied after guilt is accurately and appropriately assigned -- something plea bargains make impossible. They induce false confessions (it's often the case that an innocent person would spend more time in jail waiting on their trial than they will if they plea bargain -- many decide they don't particularly like jail and take the plea. Not to mention the threat of a bigger sentence). They distort the findings of the court as prosecutors do not try to jail the person for what they can prove they did, rather they use the potential threat of what they might be able to suggest a person did in the future to provide the punishment.

-The law is always capricious and unreasonable. It is a human institution and it's adversarial. If someone is given an unreasonable and capricious sentence it's the fault of the prosecutor who pushed for an inappropriate charge (and happened to win anyway), or the judge who abuses his power to punish the person, or the lawmaker to design laws with appropriate punishments.

Plea bargains can make punishments more consistent and predictable -- everyone is guilty whenever they are accused. Their sentences are milder than technically could be possible but guilty nonetheless. For the unlucky few who have the audacity to maintain their innocence in the face of a prosecutor on the attack, well, capricious and unreasonable is exactly the name of the game. The phrase "throwing the book at you" exists for a reason.

The real point which I don't think you touched on is the simple principle of the government giving citizens special rewards and treatment for waiving their fundamental rights. It shouldn't happen if rights are to remain rights. Why shouldn't congress pass a law saying no taxes for people who sign a pledge to give the government permanent permission to search through all of their documents, computers, affairs, so they waive all protection against search and seizure? It's purely voluntary. Why should citizens subject themselves to the capricious and unpredictable execution of search warrants when they can just come home one evening to a police officer politely saying hello as he rifles through their closet? It's much better than a ridiculous unpredictable SWAT raid at 4am. And they get rewarded for it!

>None of those points really have anything to do with plea bargains -- they are just bad things about the CJ system.

I think you're making my point for me -- to prevent the "plea bargains are bad" position from painting you into a corner, you attribute the inconsistency to the horribleness of the CJ system itself. That was my point all along! The problems you describe are problems with that selfsame horribleness:

A) Punishments are excessive.

B) Defendants get insufficient advice.

C) Trials (and waiting for them) take too long

D) You are detained (from excessive bail) while waiting for the trial

E) Prosecutors are likely to get convictions even in the absence of guilt.

F) The system is so capricious that people are willing accept a large punishment in lieu of riding it out for the true final judgment.

G) A-F lead to people people confessing in the hopes of leniency rather than because of literal culpability.

Hence my point -- those are the problem. If plea bargains were an independently bad thing -- let alone "the" obviously wrong thing that should be prohibited (on the level of non-competes etc), then it follows that we would be better off removing plea bargains even if everything else remained in its current state of horribleness.[1]

But that implication is emphatically not true! If you just banned plea bargains, A) punishments would be just as excessive, B) defendants just as flat-footed and likely to lose at trial, C/D) people would be in detained limbo even longer waiting for every last trial to play out, E) unwarranted guilty verdicts for the longer punishments just as likely, and F) a capricious/over-the-top punishment still waiting for them at the end.

And for the cherry on top, G) people would still be pleading guilty, still waiving their right to trial in the desperate hope that some judge might show mercy, and still being effectively rewarded for it!

And yet, I still wouldn't see the preference ordering under which that's better.

Would you say the same thing about plea bargains if A-G were removed? Criticisms would be far less defensible: imagine that the punishment for shoplifting is something relatively mild (one month plus record expungement) and a defendant were expecting 90% chance of conviction based on expert advice. The prosecutor offers a week in return for a plea, and the trial would happen in about a month and last a day. Do you really think it's an improvement to force the defendant into a trial or "whatever the judge gives them for a guilty plea"?

[1] Would you be able to say the same for the other horrors you mentioned? Non-competes, mandatory arb, etc? It seems that removing them and changing nothing else would be an improvement.

Yes of course I would still argue against plea bargains if A-G were removed. That's exactly what I stated in my previous post, including reasons why, which you've avoided discussing.

Of course I think removing plea bargains and changing nothing else would be an improvement (no hassle-free imprisonment and brutal torture perpetuated by the state? sounds great!).

And you believe that in light of the arguments I just gave about how removing only plea bargains would be bad thing, as it would just backlog the courts even further and make defendants suffer even worse punishments?

If you're thinking something like "oh yeah, every charge should go to trial, and we should fund it better so there's not a ginormous backlog, and require a big burden of proof before you can detain someone awaiting trial" -- well, that doesn't count, as it's changing the court funding and bail policies too. As it stands now, making every charge go to trial means waiting ten years for a trial. Doesn't sound like an improvement to me.

Do you also accept the implications of the scenario I gave, in a post-A-G world? Where, rather than take the lighter punishment, you prefer that the defendant risk the heavier punishment or put himself at the mercy of the judge?