There are a bunch of things which (IMO) are in this family of problems. Prosecutors discretion , everything is a crime is certainly one problem that seems to exist to a scary degree in every modern law system. Sodomy remained a crime long after it stopped being prosecuted. It had always been prosecuted selectively anyway.
A related issue of selective investigation and arrest by police. Perhaps more scary because of the Polices’ greater exposure to the public. This comes into play a lot with discrimination and political oppression.
Then we have judicial discrepency. That might be the trickiest one. Among its many effects, it allows plea bargaining to create a very big gap between a negotiated plea and the potential outcome of a court case. Take one year or risk five. Just confess and take the reduced sentence. A defining feature of show trials is forced confessions. Confess. Beg forgiveness and mercy. That is using incredible pressure to deny accused their day in court and a trial where both sides present their case.
Then after a sentence is passed, the actual length and severity of prison sentences is in practice determined by the prison system which has its own arbitrary and/or discretionary powers.
Rule of law is hard, genuinely. Could courts even handle a system without plea bargains?
"Could courts even handle a system without plea bargains?"
In a system without plea bargains, the prosecutors wouldn't be able to prosecute as many people, or as many charges. They wouldn't have the resources to go after nearly as many people. The courts would thus have less cases to hear.
Even the suggested system where the prosecution pays the legal costs of the fraction of charges they don't meet would be limiting to prosecutions. I imagine even that would be very difficult to convince legislators to agree to, as it increases costs and hence would reduce the amount of criminals that can be 'put away'.
I find the whole plea bargaining system to be obscene. Prosecutors are basically blackmailing the person into accepting a lesser charge, even if they are innocent of any charge. I remember the first few times I saw this type of thing on tv shows, I thought it was some kind of corrupt dealing: 'surely this is illegal, making a shady private deal between the suspect and the lawyer'.
Rule of law is impossibly hard. The idea is that we are a government of laws, not a government of men, but someone has to decide what to prosecute and so in the end at most it is a plausible fiction and rule of law ends up reducing to "rule by prosecutor."
This is one of the insidious aspects of mandatory sentencing guidelines for example is that they shift power from judges to prosecutors.
Is it? One thing that puts what could be called inappropriate power in the hands of prosecutors is the discretionary sentencing. If you could go to jail for one year or ten for the same crime, and the prosecutor promises to ask for one if you confess and apologise, they have a lot of leverage. It makes claiming innocence punishable itself.
I suppose they bypass anyway by selecting the charge/law that you are going to be prosecuted under. Hard.
A related issue of selective investigation and arrest by police. Perhaps more scary because of the Polices’ greater exposure to the public. This comes into play a lot with discrimination and political oppression.
Then we have judicial discrepency. That might be the trickiest one. Among its many effects, it allows plea bargaining to create a very big gap between a negotiated plea and the potential outcome of a court case. Take one year or risk five. Just confess and take the reduced sentence. A defining feature of show trials is forced confessions. Confess. Beg forgiveness and mercy. That is using incredible pressure to deny accused their day in court and a trial where both sides present their case.
Then after a sentence is passed, the actual length and severity of prison sentences is in practice determined by the prison system which has its own arbitrary and/or discretionary powers.
Rule of law is hard, genuinely. Could courts even handle a system without plea bargains?
reply