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THE PLEA BARGAIN CONTROVERSY

 

     I am compelled to comment on the matter of a recent ruling regarding prosecutorial conduct about which I believe considerable poor thinking is being offered for public consumption.  The issue is a ruling by the 10th Circuit Court of Appeals which held that the wide-spread practice of co-defendant testimony plea-bargaining, (in which one defendant is induced to testify in court against another defendant by promises of special treatment by the prosecution and court), amounts to the buying of testimony and therefore violates a federal statute against, well, ...the buying of testimony. It is self-evident that it does exactly that, and I am troubled that some contend with that unambiguous truth. The proposition that the months, or years, of an individual's life which might be put on the table in such a plea-bargain do not constitute "something of value" is disingenuous, to put it kindly.  Other similarly disturbing, and unconvincing, points are offered in decrying the ruling, some of which amount to the following:

1). It’s an ancient practice;

2). Despite passing the statute in question, Congress also has passed statutes codifying the practice;

3). If the practice is wrong, then judges are as guilty as prosecutors; and,

4). The practice works to serve an interest of society.

     As to the first point, that plea-bargaining is a long-standing practice, so what?! Vote-buying, bribery of bureaucrats, and general corruption are also ancient institutions. No more needs to be said, I think.

     Regarding the supporting legislation passed by Congress that is cited, those related pieces of legislation were passed by a Congress separated by many years from that which established the illegality of bribing witnesses for their testimony, and served only to shamelessly clarify what had by then become a long-standing and pervasive violation of the older principle.  The point that if indeed this practice is wrong, then judges are equally guilty again calls forth a ‘So what?’, except in that it serves to highlight the degree to which our once independent judiciary has become an active participant in the ongoing triumph of short-term pragmatism and populist politics over the principles of constitutionalism and the rule of law.

     The final argument, that the practice serves some compelling interest of society, is the most pernicious. This, of course, is the argument used to defend the welfare state, campaign finance limits, gun control, and any other violation of the clear language of law when a political interest needs to be served. It is because of that type of argument that the overall respect for law in America is in precipitous decline.  Such thinking is either a cause, or a reflection of, the descent of American intellectualism into such nihilistic practices as deconstructionism, historical revision, and moral relativism.

     Oliver Wendell Holmes notwithstanding, when a law speaks in plain language, it means what it says. "Congress shall make no law…" does not mean "except when it really seems like a good idea, or we really want them to, or there’s a ‘compelling government interest’". It means NO LAW. What part of this is hard to understand? To argue that the Circuit Court's ruling lacks ‘realism’ is to say that ignoring the clear words of a law is acceptable in the interest of convenience, and that because reining in the suspect practice would be inconvenient, we should just pretend that the law doesn’t really mean what it says.  How, in the face of such pragmatism, are we to raise our children to respect the law? How are we to hold accountable those who apply the same reasoning to statutes that they find personally ‘inconvenient’? If it is that when enough of us all decide to violate a law en masse such violation becomes acceptable, then we have mob rule. If it is that when a judge or a prosecutor violate a law for the sake of efficient administration of "justice" it is acceptable, then we have a police state and no justice.

     It is an irony that the issue of plea-bargains in this context is intimately tied to the effects of systemic disrespect for higher law by those who we charge with making and enforcing the law. Plea-bargains are used in the main to speed cases through a hopelessly clogged judicial system, and to provide what is often the only evidence in "crimes" which are lacking in one intuitively essential element: victims. If our respect for the U.S. constitution, (the highest law in the land and that to which all other legislation is subordinate), were greater, we would not be faced with the caseloads that make plea-bargains so attractive to prosecutors faced with limited resources; prosecutors would not be capable of the routine overcharging that they engage in to arm themselves with coercive plea-bargain latitude; and the general respect for the law would be enhanced, with the consequence that less overall lawlessness would pervade society.

     I am sympathetic to the impulse toward permissiveness with what appear to be practical necessities in the administration of order in our increasingly chaotic society. But all too often the mantle of desperately needed practicality serves as a cloak for mere license, and each twist of the clear truth for the convenience of a ‘compelling interest’ adds a bit to the murk through which all other truths must be discerned.

     The appellate court read a plain law with plain language and drew a plain and clear conclusion. It is refreshing in the extreme, and it behooves all who love the truth, and who do not fear it, to applaud and uphold this increasingly rare event. The reaction of derision and outrage sparked by this ruling was heavily tinged with a certain anxiousness, and the sense that it is informed by the hope that a sufficiently forceful disdain would preemptively sway the higher courts into whose consideration the ruling’s fate will be entrusted.

 

     If a plain reading of the law results in an unwanted consequence, then let us change the law. Let us not be party to the ongoing erosion of truth because adhering to it scrupulously is "unrealistic".

 

"Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."

-William Pitt 

 

Peter Eric Hendrickson

 

(Speaking of upholding the law, click here to learn the truth about the "income" tax, a definite problem area where respect for the law is concerned)