Prosecutor's Prerogative _copy

Forget the old, you're innocent until proven guilty. It got lost somewhere between the hula hoop and the iPhone. Prosecutors have an old tool with a new edge, it's called "plea bargaining." Historically, it has been used to get an accomplice to a crime to testify against the principal offender in order to get a conviction. But today it's capable of doing much more, except recognizing the innocent.

The New York Times reported that fewer than one in 40 felony cases make it to trial, according to nine states that have published such records since the 70s, when the ratio was about 12 in 40. Is this a case of more conscience driven criminals, willing to repent, or is it about personal gain and budgetary short-falls that pump up conviction quotas and keep the accused out of the courts.

It was shortly after the laws for mandatory sentencing and the three strike rule were implemented into some state courts, that "plea bargaining" captured exclusive power over them. With that power, prosecutors were enticed to change, add or stack charges, sometimes equating to sentences 10 times that of the original charge, if the defendant refused to make a deal. It is known as a trial penalty, or better known as, railroading.

In some cases, a refusal to accept a three or five year deal, could later become a life sentence. One must wonder, why would a prosecutor make a three year offer to a criminal that could possibly be guilty of a crime that would warrant a life sentence? How many of the innocent will plead-out to a two or three-year deal when threatened with the possibility of going away for life?

This travesty of justice has yet another ugly side. In Florida, a Deacon who had just shot and killed his second wife, later went down the road into a church and shot two other ministers. The deacon, years before, murdered his first wife, but was offered a charge of manslaughter in a plea deal in order to avoid a lengthy and expensive trial. After five years, he was released. He then moved to Florida and married the wife he would go on to murder. We hear this story more often – the horrible crime being committed by a released ex-con whose reduced sentence was a fraction of what the actual crime they committed called for.

A prosecutor predisposed with the cost of a trial might add on a charge in effort to keep the case out of the courts. But if the defendant rejected the plea bargain deal, a guilty verdict might result in a 10-year sentence for a crime that really should have only received two years. How prudent is that? With the cost of prisoners running around $100 a day, wouldn't a 2-year incarceration have cost $70,000, but because of the additional charge, end up costing the state $350,000 for the 10 year sentence? And the more important question is: How unjust is that?

Prosecutors can personally benefit from this judicial charade. When only one in 40 cases make it to trial, that translates to a 97 percent conviction rate for the prosecutor. When a prosecutor leaves government to seek work in the private sector, a 97 percent conviction rate can often reap a starting salary in the high six figures.

Moreover, when only one out of 40 criminal cases go to trial, the prisons fill up quickly. In America, which currently has two million of its citizens incarcerated, the savings the courts might reap from coercing a defendant away from their Sixth Amendment rights doesn't compare to the money private prisons charge the state for the high number of prisoners.

"Prosecutors Gaining More Leverage" N.Y. Times, 9/27/11, reported that Rachel Barkow, a professor of law at New York University who studies how prosecutors use their power, said, "Legislators want to make it easy for prosecutors to get the conviction without having to go to trial." adding "And prosecutors who are starved for resources want to use that leverage." Albert Alschuler, professor of law and criminology at the University of Chicago says, "The greatest pressures to plead guilty are brought to bear on defendants who may be innocent".

Legislators and law enforcement are not likely to seek change from this process. They say they are operating within the law, and they are, but carefully crafted laws – laws designed with a motive – regardless of the social and financial costs. What has helped to institutionalized this practice into a billion dollar industry are organizations like ALEC, an acronym for, American Legislative Exchange Council. ALEC, for almost 30 years, has been orchestrating local, state and federal legislation to migrate government operations to the private sector. Year round ALEC sponsors junkets for legislatures and corporate heads alike, to craft legislation that ultimately undermines government's ability to perform. They are a one stop shop for privatizing.

More than twenty years ago ALEC members lobbied for stricter penalties and the three strike rule legislation. One of it's largest partner and client is CCA (Correctional Corporation of America) who now makes a billion dollars annually operating state prisons. In California, their state contracts soared from $23 million in 06, to $700 million in 09, a 31 fold increase. CCA, based in Nashville, and ALEC have been duplicating this in every state possible, while CCA has become the largest private keeper of prisoners in the world.

Another one of ALEC's members is the GEO Group Inc. The Boca Raton based GEO is almost as large an operation as CCA and growing at the same rate, which is to say exponentially. Both operate prisons in Florida, as does MTC and all three are bidders for Rick Scott's South Florida 18 county, prison privatization deal, that is now facing legal obstacles after a judge ruled that the process of privatizing the prisons via a budget directive, violated Florida law.

Like most issues in politics, one need only follow the money to find the root of injustice. But when it comes to depriving our citizens of their liberty or shoving our children into the cyclical system, igniting a predictable cycle that these flaws only perpetuate, the cost cannot be measured in dollars. There are perhaps many reasons that the United States has the highest incarceration rate of any nation in the world, but it seems to start with a flawed premise. We are supposed to maintain that a man is innocent until proven guilty, but we then judge ”success“ by the percentage of the accused that a prosecutor can ”win“ a conviction of. This would suggest that an arrest – itself only an accusation – is instead indicative of guilt, and that due process is merely an obstacle to incarceration. An obstacle we've seemingly come up with an effective way to avoid with a simple question... 2 to 5, or 10 to 20... your choice.