The defendants package + free pdf download

The criminal justice system-the vast institutional apparatus centered on the courthouse, populated by lawyers, judges, probation officers and attended by police officers, lab technicians, coroners, and civilian witnesses-is a vastly expensive, scarce community resource.

I do not here refer to the corrections system or to the lawmaking activities which create and sustain a system of crime and punishment. This scarce resource is created by the community for the limited but important purpose of fairly and accurately adjudicating accusations of criminal misconduct. Since it is a scarce resource, duties of fairness in its utilization arise: all those who have a say in how this scarce resource is used-including the criminal defendant"2 -have moral duties concerning how the resource is used.

It makes no practical difference that one thinks the system is understaffed and underfunded. Duties of fairness arise, like it or not, from the fixed quantity of resources available, no matter what that quantity is. But even other defendants who are inclined to plead guilty have significant needs for the attention of defense counsel, prosecutors, judges, and other court personnel.

All these persons' ability to give other pleading defendants the attention they deserve is limited by the number of cases tried. In the time it takes to try one felony, perhaps hundreds of plea negotiations can be conducted.

The defendant has the legal liberty to plead not guilty, to force the political community to prove its case against him, and thus to The claim that defendants have a moral duty to promote the common good, the discharge of which favorably affects sentencing, will probably strike anyone like Posner as absurd.

I leave aside, without judging it, the possibility of demonstrating the injustice of a court system or of some law by resolving to demand trials in all cases-exactly to paralyze the system. The defendant is neither obliged to explain his plea of not guilty nor is he informed that he faces adverse legal consequences by pleading not guilty. The defendant, in other words, is not only at liberty to command the consumption of a scarce common resource by dint, simply and solely, of his say so, but to impose upon many innocent individuals.

The accused is also at liberty to act for the benefit of others, considered both individually and as constitutive members of the common political society. If he pleads guilty, he permits the scarce resources he would otherwise cause to be consumed to be devoted to the causes of others who might have cases more deserving of trial, or who have other reasonable claims upon their attention.

By freeing all the institutional actors concerned with his case-his lawyer, the judge, the prosecutor, police witnesses-to tend to other duties of various sorts, the pleading defendant acts indirectly, but effectively, for the benefit of the whole community. Further, the defendant who pleads guilty acts for the common good and anticipates some of his punishment by placing resources that the community has placed at his disposal, at the disposal of others. Put differently, he freely declines to exercise his legal liberty to consume these scarce resources.

He gives back to the community, which he treated unfairly by committing a crime, one scarce resource-the criminal justice system-in lieu of his unfair diversion to himself of another scarce resource-liberty. The earmark of punishment is restoration of a balance across the members of society of restraint within the bounds of law.

The defendant needs to have his will imposed upon a matter to which we shall turn momentarily , but punishment does not entail useless privation. In fact, common usefulness should be an aspiration of the sentencing judge. Hence, community service is an element of a criminal's punishment. OBJECrIONS The most plausible objection to reducing the pleading defendant's sentence is, it seems to me, that it gives to the defendant too much say over what his punishment shall be.

The idea is that punishment should not be chosen by the defendant, that he must be made to suffer some unwelcome privation, and so pay his debt to society. The objection seems, or sounds like, it is right: one should not be at liberty to choose one's own punishment.

But, exactly, why not? The misbehaving child, given a choice by an inattentive parent, might choose to give up Nintendo for a week as punishment for missing curfew. But, unknown to the parent, the child is sick of Nintendo, or sees that because of basketball practice and schoolwork, he would not have time to play Nintendo anyway, or the child simply welcomes the free time, which he expects to fill with other pleasurable activities.

I concede it is unwise to let children choose, willy nilly, their own punishments. But it might be wise to let them choose from two or more activities of the parent's choice, for this reason: the choice gives the errant child a limited opportunity to embrace the punishment and shape his character around the moral goodness of being punished.

That is to be encouraged. We should want a person who is punished to accept and, in that sense, to embrace the moral correctness of the punishment. To get back to the case of the pleading defendant.

He does not choose, willy nilly, his punishment. The options, including the opportunity to plead guilty and its consequences, are shaped by factors other than his will. The objective question is whether the plea is an opportunity to serve the common good and to relieve law- abiding citizens from some of their sucker status. And so it is unlike good "private" acts the defendant might do to evidence improved character, such as visiting his ailing mom, or resuming his child support payments.

These good acts should not affect sentencing. Once the objective question is settled, if the defendant accepts embraces his punishment, all the better. Consider one effect of denying this view: the defendant who positively embraces his imprisonment, in the sense of seeing its value and who willingly submits to it, and makes the best of it, is beyond punishment altogether. The Bird Man of Alcatraz, or a jailhouse lawyer or minister, or any other prisoner who makes a useful, even good, life behind bars would never be able to pay his debt to society, precisely because he becomes good.

The idea is that there is intrinsic value-educational, mainly-to jurors in being jurors. Jurors may sometimes behave as members of a New England town meeting, and be better for having done so, but all such effects should be seen as incidental by-products of the jurors' adjudicative function.

Having denied the independent significance of these "intransitive" benefits, I am not sure what is left of the objection that, however particularly stated, presupposes that resolution by a jury verdict is, somehow, the norm or standard or ideal resolution of a criminal lawsuit. In my experience, this standard is usually presupposed; it is rarely defended explicitly. But what is to be said in its defense? There is surely no logical relation between everyone having a legal right to a jury trial and everyone actually having a jury trial.

The criticism can get aloft only by identifying some number of trials or units of jury service as In no plausible scenario growing out of what I here propose will the number of jury trials be negligible. And, once the transitive value of jury trials is seen as the determining criterion in considering their overall utility, it becomes an entirely open question whether juries get it right more often than the alternative. But what is that alternative?

On what basis, other than overvaluation of intransitive effects or a dreamy prejudice in favor of jury trials, is the jury preferable to a scheme like mine that identifies a substantial class of guilty defendants who ought to plead guilty? My guess is that the appeal to the jury norm again, apart from intransitivity is covertly a function of what I treat in Part V: a disagreement about just what class of defendants ought to plead.

The next objection is that plea bargaining, of which the defendant's willingness to plead is an essential part, gives the prosecutor too much power. This objection is comprised of two different claims, and one of them has two related aspects. To take the complex claim first, the charge seems to be that prosecutors have, in a system characterized by guilty pleas, too much to say about the It is certainly the case that, in a regime of developed classifications of crimes accompanied by determinate sentencing, prosecutors have a great deal of power.

By offering to reduce a top count of murder, for instance, which might carry a mandatory minimum of fifteen years, to manslaughter, which carries a minimum of two years, a prosecutor constrains a sentencing judge's options and offers a defendant a powerful incentive to plead. Or, a prosecutor might charge a felony and accept a plea to a misdemeanor, or accept a plea to a felony, which carries no mandatory prison time where a higher degree felony, with mandatory incarceration, was charged.

But is this to say that the prosecutor possesses too much power, or that he is a usurper, or both? With important ethical side-constraints which I state below, the answer is no. For one thing, the argument may prove too much. The prosecutor's discretion to charge or not, and what to charge, is an ineradicable aspect of executive authority as it is generally understood in our constitutional system, as is the pardon at least for chief executives , and with limited exceptions the decision to immunize a witness.

Think of the consequences of Ken Starr's decision to immunize Monica Lewinsky. No way to significantly limit all this discretion is at hand; a statute to command prosecution of "all offenses without exception" is unworkable, and a directive to charge the highest provable crime does not avoid prosecutorial judgment calls: what is the highest provable crime?

Constraints with more modest ambitions, such as those requiring a plea to, say, a felony no more than one classification lower than that charged, may blunt much of the force of the "prosecutors-have-too-much-power" criticism. Is the prosecutor a usurper? The legislature invests great authority and, yes, great leverage in the prosecutor by setting up a classification scheme in which the sentencing differences between adjacent classes of crimes are great.

There may be a usurpation argument here, though I doubt it. But if there is an argument, it is an argument against the legislative branch. By granting a host of debatable assumptions, it might be argued that some proper discretion of judges has been legislatively transferred to prosecutors. Again, I do not think so.

In any event, much of the prosecutor's leverage over sentencing is a function of judicial eagerness to impose sentences which the prosecutor is not heard to oppose. The first constraint is familiar to anyone who has seen a standard code of professional responsibility: in no case whatsoever shall a prosecutor accept a plea from a defendant whom the prosecutor does not believe is, in reality, guilty.

The second constraint arises from the whole complex of ethical considerations we have been examining, and I can only give a general expression to it here: plea offers ought to be consistent with viewing the guilty plea as an opportunity for the defendant to act for the good of others. Plea offers should, therefore, move within a range inhabited by the "good man," and ought to steer clear of offers that even an indifferent defendant would accept.

Nothing the prosecutor does can insure that, even within the acceptable range, defendants accept offers for good reasons rather than bad. However, the prosecutor can give defendants a chance to be good. I do not exclude a radically different approach to plea bargaining; call it the market approach. The right plea offer is simply that which, given the constraints within which the actors operate, suffices to secure a disposition. This approach may be justifiable, but not on the basis of any argument here.

Besides, at least typically, the pleading innocent would have to speak falsely in order to gain a court's acceptance of his guilty plea. But, in what situation is the common good served more by trial to a verdict than by a plea of guilty, where the defendant could plead guilty without speaking falsely? In many criminal trials, the jury reaches a decision that amounts to more than the termination of one lawsuit but amounts to interstitial lawmaking.

They are specified by the jurors. Over time, such provisions are hammered out by juries so that a kind of common law of force, or noise is enacted. Since the common good is plainly served by having some standard about these matters, trying at least some such cases is good.

The same is true for other justification and excuse cases. Some defendants do a public service by bringing cases to trial, by carving out, one might say, a common law of convictions. In one sense, this is the line between criminal misbehavior and behavior that is tolerated in the community. Participants in the criminal justice process regularly, if not always consciously, have in mind the prospects of jury conviction when they make decisions about what to charge, how to defend a case, and whether to make, or accept, a plea offer.

Even when the defendant is, in fact, guilty, he may be convinced, with good reason, that he may serve the common good more effectively by litigating the case. Examples include the following: The defendant is in fact guilty of selling drugs and would be willing to plead guilty, but exposing the pattern of police misconduct in his neighborhood, which includes harassment of African-American male youths, must be a feature of his trial. This defendant's lawyer promises to litigate the matter fully.

The publicity which the defendant's own testimony, along with the discovery materials secured from the police department, may provoke the serious review of police operations in the defendant's neighborhood that is needed. The defendant is in fact guilty of operating a livery without a proper hack license. But due to prevalent stereotypes, corruption, inertia, and the greed of others, there is no available taxi service in his minority neighborhood.

The defendant is convinced that nonenforcement of this ordinance would serve the common good, and he has reason to believe that a jury drawn from a true cross section of the community will not convict him, no matter what the evidence of his violation of the positive law is. He hopes to help decriminalize this valuable service. The defendant is in fact guilty of trespassing at an abortion clinic, but, like the civil rights demonstrators of the preceding generation, he believed that the positive law that he has admittedly broken is unjust.

He holds out little hope that he will be acquitted but believes that passive resistance to the unjust law, including a zealous defense of the charges against him, serves the common good. I leave aside the question of what jurors or a judge ought to do in this case. The example is included on the assumption either that there is a good faith possibility that public authority considers the law to be just or that nonviolent violations of it are counterproductive.

But, at least in certain classes of cases- notably, legislative-type verdicts-and in certain individual cases- those "sending a message," for instance-the sentencing judge should proceed on the presumption that the trial defendant be treated as would a defendant who pleaded guilty. I do not imagine that all such defendants act out of concern for the common good. But the burden should be on the prosecution to rebut the presumption that they do. Which defendants, from the point of view of the common good, ought to plead guilty?

The central category is the large numbers of crimes that occur when a particular defendant's guilt turns upon a simple historical fact. Identity is the leading example. My guess is that most criminal accusations lodged in the average jurisdiction can conclusively be proved, by reliable evidence, to have been crimes: someone broke into and stole this car; this death by shooting or asphyxiation was surely an intentional killing; this woman was surely beaten and raped by someone.

Now, in almost all of these cases even where the prosecution may have no eyewitnesses , there is at least one person who is sure of the criminal's identity: the defendant. He knows whether he was there or not. Other cases in which the precise offense committed' turns upon some simple historical fact: Was she sixteen years of age? Was the stash at least a full pound of cocaine? This class of "simple" cases is very large. Where the people's proof is all but certain to convict, unless the defendant is a member of that class of persons who have compelling reasons to avoid punishment, he should plead guilty.

Add in cases in which the proper mental element is the only real question-this defendant knows he is guilty of unlawful killing, be it murder as the prosecution contends or manslaughter as he sees it -and the percentage of defendants who can be sure that they are guilty of at least one of the crimes charged, including lesser included offenses, is probably quite large. These defendants, again from the point of view of the common good, should plead guilty and receive favorable sentencing consideration for doing so.

Not all of the defendants who plead will be acting. Some will. And the system would benefit, I think, from a blanket presumption in favor of the pleading defendant. Which defendants? Bob is, in fact, guilty of robbing a convenience store. But he has been imprisoned before, and he knows what punishment by imprisonment really includes. Because he is not physically powerful and not a likely candidate for gang membership and the security that a gang entails , he is virtually certain to be subjected to physical degradation, including rape, by other prisoners.

Bob knows also that while rape is common and that prison authorities are aware of its prevalence, they do nothing about it: no prisoner at Stateville Prison has ever been charged by prosecutors with rape; prison discipline is rarely, if ever, imposed for that crime; and segregation from the other prisoners is possible only by authority of the warden. However, the warden thinks that being sodomized is an inevitable aspect of imprisonment. His stated attitude is that Bob, and others like him, should refrain from criminal activity if they are so averse to the conditions of confinement.

Anyway, the warden has not the facilities for isolating all the victims of rape. His policy is not to isolate anyone, unless there are particular aggravating circumstances the victim is needed as a witness in another case, is due to be released soon, has connections, or is being beaten, too. Bob concludes that, because no such circumstances are present in his case, that he need not submit to imprisonment on these terms, and that he should do what he can, short of acts wrong in themselves, to avoid such "punishment.

While many defendants may have constricted their activities mainly to hanging out with unsavory associates and to exploiting others, no one is devoted entirely to such worthless pursuits. Virtually every defendant has some worthwhile friendships; many are valuable members of families and have friends who will suffer from their imprisonment. Many have worthwhile projects, including an education in progress, employment of genuine value to others, and so on.

Especially from the perspective of the deprived innocent bystanders-dependents and other family members-these losses are not properly part of punishment. They are not the point of imprisonment. It seems to me that a high percentage of all defendants who are, in fact, guilty would promote the common good by pleading guilty, but I do not know how deeply the exposure to such inhumane practices vitiates, at least where there is official indifference, the moral legitimacy of the criminal justice system.

The extent might be, however, great. Would not any defendant be morally justified in seizing the chance, no matter how small, of a favorable jury verdict as opposed to the certainty of punishment after a guilty plea? And, if so, is this not to say that a sentencing judge should treat any defendant as having done the right thing?

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Mark had reviewed the sleep study, the the court was concerned about the adequacy of the higher court noted that his testimony was based only data presented and the resulting methodology.

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Pate died, he did present Kendell L. Rivera had sleep terrors, and pre- sented Mr. Baranoski, PhD in a light favorable to the view that he did not have Associate Professor of Psychiatry the requisite mens rea to be convicted of first-degree Law and Psychiatry Division murder. That is, the restriction on Dr.

Mark from providing evidence regarding Mr. Defendants Evid. Bell, 53 So. During the capital sen- from the death penalty. Bell was mentally deficient pursuant to La. Code Facts of the Case Crim. Bell interrupted services at exempts defendants with mental retardation from the Ministry of Jesus Christ Church, asking Pastor execution.

Zimmerman, diagnosed Mr. Bell with intellectual Present were six adults and five children: Mr. Hoppe cited Mr. He asked Erica to recon- dence of Mr. Bell became Dr. Bell returned as people were leaving. She, the only adult survivor, heard gunshots, found John Thompson, a court-appointed expert, opined herself lying face down, and saw Mr.

Bell force Ms. Bell was intentionally underperforming to Bell and their three children into a car. Pastor Brown appear severely mentally retarded. Zimmerman called the police, identifying him as the shooter.

Bell called the police, re- retardation when the evidence regarding malingering porting that his wife had committed suicide.

They became available. His former employers testified found him outside his apartment holding his infant about his work as a tank washer who also supervised son. The jury rejected the mental of his Miranda rights. During the investigation, he retardation claim and sentenced Mr. Bell to death. He was that his waiver of appointed counsel was valid and indicted on five counts of first-degree murder and that there was not sufficient evidence that the jury one count of attempted murder and faced the death had erred in rejecting his mental retardation claim.

Defense counsel made requests of the court Regarding his waiver of counsel, Mr. Bell cited Indi- concerning his mental state, asking for an IQ assess- ana v. Edwards, U. After a hearing in August , Mr. Asserting that counsel was with- account when deciding a motion for pro se represen- holding documents from him, he filed several pro se tation.