Plea Bargains: Torture for Confessions? by Kirsten Anderberg
Plea Bargains: Torture for Confessions?
by Kirsten Anderberg (www.kirstenanderberg.com)
Written in 2003
Can torture produce a legitimate confession? The debate is ancient, worldwide and ongoing. Most respected authorities agree that confessions made under duress have serious problems. Basic American contractual law acknowledges the problems therein, and thus contracts must be made with an "arm’s length" bargaining, meaning parties must have a somewhat uncohersed negotiating positionality. Due to this standard, contracts made under duress are often found to be void.
Ironically, most of us can see the apparent problems in tortured confessions, and also in contracting at less than an "arm’s length" bargaining, yet that logic stops suddenly when it comes to plea bargains and the criminal justice system. We’ve all heard it on the news. Someone admits guilt to a crime, and then a day later, takes back their guilty plea. This is how that happens. When someone is charged with a crime in King County, the prosecutors trump up the biggest charge they can squeak through, for instance, First Degree Assault or "attempted" robbery, etc. The prosecutors puff the charges up to be the toughest, most severe criminal category possible to scare the defendant and give them bargaining power later. The overwhelming amount of charges that are reduced via plea bargain PROVES beyond a doubt that these prosecutors could charge defendants with lesser and more realistic charges from the get go, but opt to bluff bigger crime charges to use in the bullying later.
When a person is charged with a crime in the criminal justice system, the system presents a false storefront of "equal representation" by offering the poor a Public Defender (PD). PDs came to be when a nearly illiterate man in the South, wrote on a napkin, in pencil, his argument that he never even had a chance to represent himself and now he was in jail, and mailed it to the Supreme Court. The Supreme Court read this and instituted the Public Defender system, a system that is so degraded and crippled now, that it barely resembles the original legislative intent. Legislators continually approve twice the working budget for prosecutors that it approves for PDs. Often young lawyers take their first jobs as PD’s and pay for PD’s is so low, few good attorneys stay on as PD’s. Suffice it to say, the system is as dysfunctional as an old Russian nuclear reactor.
Once you are charged with a crime, you are assigned a PD. But the PD never returns your calls, never has time to meet with you or explain to you the charges, the evidence, or your personal options. In addition, there is a mass of evidence against you that your PD can see, and YOU CAN’T. So the day of trial, your PD finally has time to meet with you, right before trial! He tells you to meet him in the law library at the courthouse instead of the courtroom. He shows up at the last hour with a "plea bargain" offer from the Prosecutor. The Prosecutor now is offering to charge you with a lesser crime, a misdemeanor instead of a felony, IF you admit guilt to the misdemeanor and waive all rights not only to a trial, but to any appeal also. THAT in a nutshell is the plea bargain system. You are not allowed to see a mass of the "evidence" against you, so you have to rely on this third party, the PD, for advice. You weigh it out...this incompetent, unavailable, overworked, underpaid PD going to TRIAL to save you against a felony charge, or give up and take the misdemeanor. Many people give up and take the plea bargain, and admit guilt, but not because they are guilty. Because they are SCARED, bullied, lied to and kept from making their own informed choices, dependent on a PD who never answers any calls or questions. To many, it is worth feigning guilt to a lesser charge to get the hell out of the criminal injustice system.
How is this different than torturing for a confession? Scaring the living daylights out of low-income folks with trumped up charges, lack of representation, and plea bargains is less than a noble system. Guilty pleas all over America are now suspect, due to the way they were negotiated. If Prosecutors cannot charge people initially with a reasonable charge, and get guilty pleas with an "arm’s length" bargaining, instead of this current bullying bargaining, then the system is laughable, at best. So the next time you hear someone admits guilt, and then retracts it, it probably means they finally got a private attorney, as opposed to a Public Pretender, to represent them! I am ashamed of how the American criminal justice system is currently functioning, criminalizing the poor and minority populations, bullying for guilty admissions, thereby rendering the admissions useless. I do not believe there is any good in torturing for confessions or bullying for guilty pleas. (Copyright 2002 Kirsten Anderberg)
Kirsten Anderberg. All rights reserved. For permission to reprint/publish, please contact Kirsten at kirstena@resist.ca.
Kirsten Anderberg. All rights reserved. For permission to reprint/publish, please contact Kirsten at kirstena@resist.ca.