Crime and Punishment in American History - Lawrence M. Friedman [250]
In July 1975, the attorney general of Alaska, Avrum Gross, issued instructions to all district attorneys and staff in that state: no more plea bargaining at all.35 Plea bargaining is often explained as a response to crowded urban courts. But Alaska? This is a land mass twice the size of Texas, rich in scenery, home to grizzly bears, bald eagles, and caribou, but relatively few members of the human species. Its whole crop of mortals could fit comfortably in a single neighborhood in New York City. Yet plea bargaining was alive and well in Alaska; and it looked like a problem—a corruption of justice—even there.
Still, there are such things as “crowded urban courts,” and what may work in the vastnesses of Alaska36 is not necessarily practical for Miami or Chicago. But Alaska was not alone in its aspirations. In state after state, there were attempts to reform the system: to get rid of plea bargaining, either entirely, or for certain classes of cases (drug dealers, for example). The results were decidedly mixed. Plea bargaining, like a cat, seemed to have nine lives.
The basic problem is the problem of routine. There are never enough resources to go around; it is possible to whip up enthusiasm for building new prisons and perhaps for hiring more policemen (although this is not easy); but there is very little political sex appeal in scraping together money for judges, prosecutors, and (above all) public defenders, not to mention courtrooms and similar facilities. Plea bargaining was a method for dealing with the problem of routine; it may have done the job badly or unethically, but it did the job.
In any event, it is not at all clear that plea bargaining can be “abolished,” at least in the present situation. In fact, it is plain that it cannot—at least not without something to replace it. The something must be a device or institution or procedure that deals with the routine but serious case. A two-time loser, twenty-two years old, is caught in the act of robbing a liquor store at gunpoint. Society does not want to spend a fortune on a full, grand trial; and, indeed, such a trial would be a waste of money. But what then? How shall we handle his case? If not plea bargaining, what else? Here, as in so many aspects of criminal justice, the system was adrift, blown this way and that by purely political winds.
Defending
It is not a job for amateurs to maneuver through the corridors of justice. Of course, habitual defendants, three-time losers, and “street smart” people have a certain amount of savvy; but on the whole, a solid defense requires a lawyer. Most people accused of crime do not have a solid defense, but they still need a lawyer, if only to drive a decent bargain.
Crime, in general, does not pay—or pay well. Routine felons are poor. The vast majority of them have no money to get a good lawyer. In modern times, the state will provide. dn The older system was to use assigned counsel: the court would appoint some member of the bar to handle the case. A twentieth-century innovation was the public defender. This was a lawyer on the public payroll whose job was to defend criminals, and thus, in effect, to bite the hand that wrote the salary check.37 Usually, Los Angeles gets credit for the first public defender system, in 1913; Cook County, Illinois (Chicago), got its system in 1930. The system was supposed to be more efficient, more professional than the old system of assigned counsel. It would save money; the public defender would avoid “unnecessary trials.”38 Thus the rise of the public defender is, in fact, tied in with plea bargaining, and the search for meaningful routine.
Public defenders dominate criminal defense today. Typically, they are overworked; burnout and cynicism are serious occupational diseases. Their salaries tend to be low, and there is a numbing volume