The NY Times published an article today announcing that plea bargaining is often coercive due to potentially harsh criminal sentences. Potentially long sentences and the “trial penalty” are well-known facts to professionals in the criminal justice system. Defendants are regularly threatened with longer terms if they exercise their right to trial. Defendants who do not give into the hard bargaining tactic of “this deal is good today only” often see the threat come to life as charges are added. The NY Times tells the story of one defendant who rejected a deal of two years and is now facing life in prison–after the prosecutor added a charge that carries a mandatory life term. And, even if charges aren’t added, judges regularly sentence defendants who are found guilty at trial to more time than the original plea offer (the “trial penalty”).
The article doesn’t propose any solutions, but still has does a good job giving an overview of the situation and the impossible choices many defendants face. See, http://www.nytimes.com/2011/09/26/us/tough-sentences-help-prosecutors-push-for-plea-bargains.html
I’ll go along with calling it an impossible choice. And I was probably also too glib in equating plea bargaining with settlement of civil lawsuits. There is obviously a difference between bargaining away years of your life vs. bargaining away money.
But the small amount of economics training that I’ve had tells me that the sentencing disparity is only going to be large enough to induce sufficient defendants to plead guilty so as to accommodate the workload of the prosecutor’s office. It also seems likely that the greater the chance any defendant has of an acquittal, the better the bargain that the prosecutor is going to offer. In other words, the system is going to seem most unfair precisely in those cases, as your example suggests, where the defendant seems to have a good defense and a decent chance of an acquittal. And those are the cases where the defendant’s choice is going to be most excruciating. (The thought makes me glad I don’t practice criminal law!)
Unfortunately, if we were to eliminate the sentencing disparity, nobody would have the slightest reason ever to plead guilty (why would any rational person ever give up the possibility, however small, of an acquittal, unless there was a big incentive to do so?). The reality is that if most criminal defendants did not plead guilty, the entire system would collapse.
Some argue that a lighter sentence at the plea bargaining stage simply gives an incentive for the defendant to give up his right to trial and that there is no real trial penalty. The problem is that the amount of time a defendant is looking at after trial is often extraordinarily higher than pre-trial, and the empirical studies support that there are much higher sentences for those who are convicted after trial. You are right, the difference between 2 years and 5 years, doesn’t sound so bad. The problem is when the sentences are grossly different.
For example, I handled a murder case where my client had a very good claim of self-defense. I wouldn’t guess how likely that client would have been to prevail at trial (I don’t know how I, or anyone, could possibly accurately calculate that she had a 20% or 50% chance of a not guilty verdict). The prosecutor offered to reduce it to an involuntary manslaughter with time served and 3 years of probation. Or my client could go to trial on the murder charge and face life in prison. As a practical matter, life meant she would never get out because the parole board had a recognized history of not granting parole to those with first degree murder convictions.
That is the kind of impossible choice that unfortunately happens daily in the criminal justice system. People have good or excellent defenses and they choose instead to plead guilty because the risk of trial is just too great.
The different consequences and the different stakes in plea bargaining make the negotiation atmosphere and consequences vastly different from civil cases, although undoubtedly there are many similarities in terms of some of the decision-making.
Let’s say you are an accused robber and I am your attorney. Suppose I tell you that if you plead guilty you will likely get a two year sentence, but if you exercise your right to trial and are found guilty, you will probably get a five year sentence. On the other hand, if you exercise your right to trial, you also have a 20% chance of an outright acquittal.
I would not necessarily call that a “penalty” for exercising your right to go to trial. I would call that a difficult choice, no different really from a settlement in a civil case, where the parties might try to approximate an “average” result to avoid the risk of a range of extreme outcomes.