Rule of law versus rule of men

Horrendous injustice.

The other students at the party took that deal and some of them are out of prison by now. Because Wilson thought he would be acquitted and did not want to be branded a child molester, he went to trial. The prosecutor blames Wilson for his sentence because none of the other defendants insisted on a trial; all the others “took their medicine.”

Please make note of the prosecutor's arrogance in that last remark.

In the immediate term a plea bargain may seem like a good deal from the defendant's point of view - after all, it is up to the defendant to accept or reject an offered plea bargain - but there are some problems in the longer term.

First, if the law is just, then the plea bargain is unjustly lenient - an immediate injustice arising from plea bargains. Turn this around: in an atmosphere of plea bargains, there is pressure to increase the severity of the punishment to compensate for the leniency of plea bargains.

It also allows unjust laws to appear and to persist without creating political difficulty because the plea bargain can reduce the injustice resulting from the unjust law - reduce it wherever it is politically expedient to do so (but keep the injustice fully in place wherever the prosecutor sees no real danger of a public outcry or other inconvenience).

(Edit: However, I would guess that the plea bargain is more a symptom of and expedient palliative for problems with law and the legal process resulting from external causes than itself the primary source of those problems.)

The unjust laws and the harsh punishments in turn will drive more defendants into the arms of the plea-bargain-offering prosecutor, and so a system of justice, characterized by courts, is gradually replaced by a system of prosecutorial authority, characterized by plea bargains offered at the discretion of prosecutors to defendants under threat of excessive punishment for having broken unjust laws.

So the effect is to corrupt the law itself and to shift decisive authority from the judge (who must judge according to the law and must defend his decision in detail in a way that can withstand review) to the prosecutor (who does not have those requirements placed on him), replacing the rule of law with the rule of men.

But the more I think about his case and the more I read about his case, the more I think prosecutors have a duty to make sure they don’t take cases to trial that they can win, when the punishment doesn’t fit the crime.

The writer is asking the prosecutor to rule justly. The very request implicitly acknowledges the rule of the prosecutor just as it explicitly acknowledges that the law itself has become corrupted. But as humanity has long known, if men were sufficiently virtuous to rule justly, then the rule of law would be unnecessary. The request that the rulers rule justly is as futile now as it always was. What is needed is not moral exhortation of the rulers as the writer attempts, but due process backed up by checks and balances - what is needed is the rule of law.

Power corrupts. It makes a man arrogant. The unjust use of prosecutorial discretion which the writer is complaining about, and the arrogance with which it was defended by the prosecutor (who called his exercise of power "medicine" and blamed the defendant for not "taking" it), illustrates this all over again.

The prosecutor's proper role is adversarial. The person who must decide justly is neither the prosecutor nor the defendant, but the judge. If the prosecutor is asked to decide justly, he is being asked to act as a judge. That would be fine if he acted under the same constraints that the judge acts under. But of course if he did that, then he would be judge and someone else would be prosecutor.

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Excellent post!

Excellent post!

So what?

This argument seems to beg its question. Yes, prosecutorial discretion would serve to corrupt a system of just laws and the rule of law. So what? We don't have such a system. Asking how prosecutors ought to behave to preserve the rule of law is like asking what color grass unicorns ought to eat.

In the absence of just laws or the rule of law, we must instead ask what measures can serve to ameliorate the cruelties and arbitrary evils of the system we have. Prosecutors employing their discretion are the first line of defense against harsh application of overbroad or unjust laws and against the waste of resources in the justice system.

If prosecutors were denied this discretion, the result would not be a general correction of the laws or a return to the rule of law. The rule of law is simply not politically popular as anything other than a slogan -- too expensive! Too error-prone! Too lacking in judgment and common sense! Rather, the result would be laws with holes cut out for politically popular defendants and redoubled harshness surrounding past moral panics, greater discretion given instead to judges (remember, sentencing guidelines arrived in response to apparent racial disparities in sentences decided by judges...), and, with every highly publicized outrage, an ever-building demand for post-facto laws to correct errors.

Prosecutorial discretion is crucial because the rule of law is simply not practical in a democratic society.


So what? We don't have such a system.

That attitude pretty much rules out all political discussion, since political discussion almost necessarily involves mention of non-actual possibilities. One or two contributors here are libertarians. They can tell you something about non-actual possibilities, since the political liberty they advocate is a non-actual possibility.

Asking how prosecutors ought to behave to preserve the rule of law is like asking what color grass unicorns ought to eat.

I didn't ask how prosecutors ought to behave to singlehandedly preserve the rule of law (as if they were the sole foundation and the sole problem). I made a point about what their proper role was. Any statement about proper roles is a statement about the whole system. Prosecutors have their proper role, judges have their proper role, etc. I am not telling anyone to do anything, I am characterizing the rule of law. At least I am trying to. For me, that takes effort. Maybe it is completely obvious to you how the law should work and not even worth mentioning, but it isn't obvious to me, and it takes a good amount of effort to try to imagine how things should work - especially since I don't have a working model in front of me. I think I might understand your problem. Your problem seems to be that since I didn't launch an assault on every aspect of the legal system, therefore what I am saying is that everything is fine except for prosecutors. Well, attacking the whole legal system would require a book. Should I write a book? If I don't write a book because I don't have a year or two of my life to set aside, then do I open myself up to attack?

Every aspect of this legal system could conceivably be defended by saying, "well, this bit is necessary because all those other bits suck". Which is what your argument amounts to - this one bit is needed because the other bits are terrible. But what if someone questions the legal system? What are they supposed to do? The spend some time looking at a part of it, find fault, and then you respond, "oh, but this bit is necessary, because all the other bits suck." The project of a critique can't even get started, at least not with you sniping at it. I can imagine someone defending the Soviet economy this way. "Well, the Siberian Gulag is necessary because otherwise the prisoners would have no shelter against the Siberian cold." Etc.

This is a blog entry, not a book, and certainly not a multi-volume set of books. I have little choice but to pick some particular aspect of the legal system and take a close look at it.

And it may be completely obvious to you that we don't have the rule of law, but it's not obvious to everyone. It's worth mentioning that what we actually have departs just a tiny little bit from the rule of law, and it's worth investigating one aspect of why it does. A system in which the prosecutor makes decisions which the judge should be making isn't the rule of law for the following reasons... [see above].

By the way

By the way, your comment appears to have been written in ignorance of my Edit (which I added only a few minutes after submitting the article last night and long before anyone commented):

(Edit: However, I would guess that the plea bargain is more a symptom of and expedient palliative for problems with law and the legal process resulting from external causes than itself the primary source of those problems.)

So here I say that the plea bargain is an expedient palliative for problems of the system which exist anyway.

And the substance of your comment is that...the plea bargain is an expedient palliative for problems of the system which exist anyway.

It's rather unusual for a comment to repeat a point made in the entry it's commenting on, and treat that repetition as if it constituted a critique of the entry.

One theory is that somehow you saw a version of the article that predated the addition of the edit. Maybe the syndicated version is the original version without the edit?

In any case, the point of making the edit was not to attack my own entry from within, but to clarify where I was coming from and what I was doing with it. It should have immediately shut down any notion that I was blaming prosecutors for ruining the system. What I was actually doing was considering the system fairly well ruined, and looking at one aspect of the ruination.

It does not mean, by the way, that I absolve plea bargains of any effect on the rest of the system. To say that plea bargains affect the law in such-and-such a way is not to imply that the law was perfect otherwise. Even if the law starts out fairly ruined, that does not stop plea bargains from ruining it some more.

And sure, plea bargains may be a least-bad approach, but that doesn't wipe out the cost. Analogously: going to the hospital puts you at risk of catching infectious diseases. Maybe it's a good idea to go to the hospital anyway but that doesn't cause the hospital to suddenly become disease-free.

Also, the plea bargain

Also, the plea bargain system means that the people who believe in honesty and justice are more likely to end up in jail.

Reforming the system would require those running it to think about how much punishment they can afford to impose, and adjust official sentences downwards. It would be nice, but I don't see it happening any time soon.

More negatives

Great post.

There are a few more negative aspects of plea bargains:

Weak precedents: A plea bargain is most often proffered when the prosecution has a weak case, will face a strong defense, and/or the charge is based on an untested extrapolation of the actual law. By having a plea bargain accepted, the prosecution strengthens the precedent for similar charges against others without ever testing the law in court. Anyone facing the same or similar charge now has weaker case, even though (AFAIK) the plea bargain cannot be cited as a precedent.

Which leads to a practice even more hideous.

Bought witnesses: A weak case combined with multiple defendants provides an opportunity for plea bargains to be offered to some defendants as "payment" for their testimony as witnesses for the prosecution against the remaining defendants. This is, in my opinion, truly disgusting. A defendant may plead guilty to a charge they don't even believe to be true, but as a risk management decision, and are then encouraged to perjure themselves against another party to avoid losing the "bargain".

I'll provide a recent example of the latter. The Board of Directors of BetOnSports PLC decided to plea the company guilty to the racketeering charge. In exchange, the directors get immunity from any personal charges. Now of course they don't believe they ran a racketeering operation, but they lose nothing and gain much by pleading guilty. The problem is, as a requirement of the bargain, they now must supply witnesses for the prosecution against former president David Caruthers, that he engaged in racketeering, conspiracy, wire fraud, mail fraud, and money laundering.

Molesting a Male Minor

I saw that case before and it makes my blood boil. I wish the government would get out of our pants and skirts. What's especially irksome is that the girl initiated it. I wonder if charges were brought up against her for molesting an underaged boy.