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Problems with Prosecutors, the Justice System
and Reward Laws in General
All rewards subject to a conviction of a felony are either out of date, out
of touch with reality, and (unintentionally) false advertising.
No one tells you their advertised rewards are subject to plea bargaining
and that plea bargaining is used in the majority of felony charges which
are, 90% of the time, reduced to misdemeanors for first offenders. A felony
reduced to a misdemeanor usually eliminates rewards paid under all Federal
laws, Crime Stoppers, and We-Tip.
Title 18 USCS 3059 is the only exception to the conviction requirement;
payment is made on a felony arrest, not conviction. All reward laws and
programs should be similar to 3059. Unfortunately, 3059 is also subject to
the discretionary powers of bureaucrats, making it doubtful, too.
* * * * * *
Here's a quote from the book "Take Back Your Neighborhood", by Richard
Neely, Chief Justice of the West Virginia Supreme Court. (1990) published
by David I. Fine,Inc.)
"... hardly any of the persons arrested on felony charges in New York City
are ever prosecuted and convicted as felons. New York Police Department
figures showed that the chance of a person arrested for a felony being
sentenced to prison was one in one hundred and eight. Although many cases
can be explained away by "overcharging" on the part of the police, the
largest number of avoidances of prison sentences come from the prosecuting
authorities' willingness to permit felons to plead guilty to lesser
charges. This willingness to cut deals favorable to defendants is a direct
function of the limited judicial resources available to give jury trials
and the chronic understaffing of the prosecutor's offices. In 1979 there
were 104,413 felony arrests in New York City, of which 88,095 cases were
dismissed, and 16,318 indictments procured. Of those indicted, 56% plead
guilty to felonies (but often less severe felonies than those which they
were originally charged), 16% plead guilty to misdemeanors, 12% were
dismissed after indictment, only 13% went to jury trial and 3% resulted in
some other disposition."
Here's a quote from WISEGUY, by Nicholas Pileggi, Pocketbooks (1985).
"According to a 1960s Joint New York State Legislative Committee on Crime
study, at least 99.5% of highjacking arrests resulted either in the charges
being dismissed or in the defendants receiving small fines or probation.
During one year covered by the report the committee traced 6,400 arrests
for criminal possession of stolen property and found there were only 904
indictments, 225 convictions, and as few as 30 state prison commitments. A
committee case study of eight defendants arrested at the time for the
possession of more than $100,000 worth of stolen property noted that each
defendant was fined $2,500 and placed on probation by New York Supreme
Court Judge Albert H. Bosch."
* * * * * *
The odds of a Crimefighter being paid a reward for truck hijacking info in
New York at that time was about 6,400 to 225 = .035%. With only 30 prison
sentences being handed out, the percentage of significant rewards being
paid was 6,400 to 30 or about .0046875 -- less than one-half of 1%.
Obviously, current reward laws are based on ivory tower assumptions, not
real world facts. Plea bargaining is the problem.
Conclusion
Only 5% of crimes that are committed result in an arrest. Then, using Judge
Neely's figures for an example, out of 104,413 arrested, only 16,318 were
indicted. And, 12% of those indicted were eventually dismissed and 3% of
those arrested "resulted in some other disposition". Only 11% were
prosecuted. Of those who were prosecuted, most of them (56%) agreed to
plead guilty for a lesser charge. In total, less than 5% were tried on
their original charges.
Under present reward laws, Crime Stoppers, We-Tip, State and Federal reward
laws, CrimeFighters would get paid only five percent of the time.
CrimeFighters in large cities should be warned the odds are about 20 to 1
for a conviction and jail time being imposed on original felony charges if
they let the State District Attorney do the prosecuting. Pending rewards
are also, unfairly downsized accordingly -- if they're not canceled.
From a business point of view, it's a sucker deal when payment depends on
many variables that are not under the seller's control and subject to
errors and omissions by third parties. In any business contract, minimum
and maximum amounts and specific time periods are clearly stated. These are
the essence of all business contracts. These conditions should also be
stated in reward laws to provide a reasonable degree of certainty as to the
amount of the reward and when it will be paid. Ambiguity may be desirable
from a lawmaker's perspective, but it seriously detracts from the intended
purpose of providing incentives via rewards.
That's why I recommend CrimeFighters use Qui Tam law. Be the prosecutor to
control plea bargaining. Use plea bargaining to negotiate an out-of-court
settlement or summary judgment of your civil suit as part of your reward.
When prosecuting cases, Federal RICO civil and/or criminal suits should be
used whenever possible to obtain 50% of fines and forfeitures. Use current
reward laws as back-up laws, to obtain Qui Tam standing, and apply for all
rewards available. When you have control of the case, negotiate with law
enforcement agencies for additional rewards.
There's an urgent need for a new reward law based on the above facts of
life. That's the subject of the next chapter.
Plea Bargaining Examined
Here's a few quotes from books by various authors (judges and prosecutors)
who try draw attention to the problems and dangers of plea bargaining.
1. Questioning Authority, by David L. Bazelon
"Because of the pressure of numbers, there is often a unanimity of interest
among defense counsel, trial judge, and prosecutor in pushing defendants
through the system as quickly as possible. The goal of mass-production
justice is rapid processing of cases. The most common mechanism to satisfy
this goal is the guilty plea. When the defendant pleads guilty, defense
counsel collects one more fee and moves on to the next case; the trial
judge removes one more trial from his calendar; the prosecutor reduces his
case load and adds one more "guilty" to his list of courtroom triumphs.
It is no secret that in the majority of criminal prosecutions the accused
is in fact guilty, notwithstanding any initial protestations of innocence.
It is also no secret that the vast majority of criminal prosecutions
culminating in conviction are settled through plea bargaining. Indeed, the
Supreme Court has recognized that plea bargaining will remain "an essential
component of the administration of justice" in this country until the
court's resources are greatly expanded."
2. Reflections on Crime, by James A. Inciardi.
"The rational-instrumental goals of the court organization, in its urgent
demand for guilty pleas, have produced a bargain-counter, assembly-line
system of criminal justice which is incompatible with traditional due
process. The dilemma is sharpened by the fact that the concern for the
individual envisioned and postulated by the rules of due process in
determining guilt or innocence, is no longer present at this crucial level.
Instead, the concern, if any, appears to be the post-guilt, pre-sentence
stage, while the actual determination of guilt is arrived at through
perfunctory ministerial procedures which have become the hallmark of the
criminal court's rationality.
Currently, approximately 90% of all persons who are accused of criminal
offenses plead guilty after the decision is made to prosecute. This
suggests that in the majority of criminal cases, the prosecutor makes most
of the decisions regarding innocence or guilt and hence, acts as de facto
judge."
(In the Halls of Justice, justice is made in the halls.)
3. The Prosecutors, by James B. Stewart.
"Plea bargaining is an inherently difficult area of jurisprudence, since
the concept is essentially in conflict with the basic notions of due
process, yet seems to be essential if the criminal-justice system in this
country is going to function. After all, every plea bargain has an element
of "retaliation" in it. The usual tacit bargain is that the prosecutor will
recommend less serious charges or lighter sentences if the defendant spares
the government the cost and time of putting him through a trial. Since
every defendant is constitutionally guaranteed a trial by jury, he is
essentially rewarded if he gives up that right and punished if he insists
on exercising it."
4. "Crisis in the Courts", written by Howard James, Chief, Midwestern News
Bureau, The Christian Science Monitor.
"While the United States Constitution guarantees a man the right to a trial
by jury, experienced Chicago defense lawyers warn their clients that
demanding a trial can be foolhardy.
A man may be offered a 1-to-3-year term (by the prosecutor with the judge's
approval) if he pleads guilty. If he demands a trial before the bench and
is found guilty, he can expect a 2-to-5-year sentence. If a jury finds him
guilty, the prison term will probably be 4 to 8 years. That's the penalty
imposed for taking up the court's time.
It is common practice for a prosecutor to try a few men for assault with
intent to kill, drunken driving, or murder. Then, for the sake of exped-
iency or for other reasons, he reduces the charges for others (who have
broken the same law) to simple assault, reckless driving, or manslaughter.
Still others are released by the prosecutor, who may be convinced of their
guilt but feels he lacks evidence to convict.
As the President's Commission on Law Enforcement and Administration of
Justice has pointed out, the prosecutor "decides whether to press a case or
drop it. He determines the specific charges against the defendant. When the
charge is reduced, as it is in as many as two-thirds of all cases, the
prosecutor is usually the official who reduces it." And "he is particularly
able to influence police operations." While police make the arrests, it is
the prosecutor who holds the controls in his hands and guides the ship.
Because his decisions touch more lives, many lawyers assert that he is more
important than the Judge.
In thousands of lower courts (and this is where 90% of all defendants
appear) a policeman or judge acts as prosecutor, though neither has legal
training. ...in dozens of courtrooms, where the prosecutor has never seen
the case before, a folder is thrust into his hands for a preliminary hear-
ing or for trial by a lower-court magistrate. Even in more serious cases
the prosecutor has a limited amount of time to prepare his case, unless it
is a spectacular crime that will make PAGE ONE in the newspaper.
Yet thousands of prosecutors are men fresh out of law school who are
learning their craft at state expense. Some have studied trial procedures
for one semester at best. Because of recent innovations a few have spent
time in court while still law students. Others have practiced law a few
months or years and take the prosecutor's job while their practice builds
and to gain experience.
Most prosecutors are young men with little trial experience because few
experienced lawyers want the job," says Robert E. West, president of the
Vermont State's Attorney's Association.
At least two in our state were elected before they passed the bar exam. The
pay is so low most have a civil practice on the side, so the public isn't
always properly represented. Often being prosecutor comes second."
5. Driving the Drunk Off The Road, by Sandy Golden.
"Routine plea bargaining from a drunk driving charge to a lesser non-
alcohol-related charge to speed up cases and clear court dockets. This
practice is a dangerous rip-off and should be halted. It results in such
offenses being repeated.
Existence of an attitude among the prosecutor's staff that such cases are
routine traffic offenses and should be handled as such. Drunk driving in an
intentional, willful act and a life-threatening crime. Prosecutors need to
recognize this fact.
Some courts are understaffed and unable to cope. Some jurists use such
legal schemes as "deferred sentencing" and "probation before judgment" to
speed up court dockets. Purposely or not, such tactics give drunk drivers a
break. As a result, the public suffers. These judges are indulging in a
dangerous practice that enables such motorists to continue driving while
under the influence of alcohol.
In some court systems it is possible to "buy" your way out of an alcohol-
related charge. This is not in any way to imply that judges can be bribed
(although some can and have been caught). It means that by hiring an
expensive defense attorney who knows his way around the system, who demands
a jury trial, who always appeals the case and who seeks continuances to
cause delays, it is often possible to get the case dismissed or plea
bargained to a lesser offense."
Supreme Court's Decision
In the leading case in the field, the Supreme Court tiptoed around this
plea bargaining controversy by saying:
"In the give and take of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or
reject the prosecutor's offer.... While confronting a defendant with the
risk of more severe punishment clearly may have a discouraging effect on
the defendant's assertion of his trial rights, the imposition of these
difficult choices is an inevitable - and permissible - attribute of any
legitimate system which tolerates and encourages the negotiation of plea."
Prosecutor's Authority on Plea Bargaining
The Las Vegas Review-Journal, on December 3, 1991, had an editorial
concerning plea bargaining of key witnesses to nail Manuel Noriega. The
following information from the editorial will give you an idea of how much
leeway a prosecutor has and how much he can give away to "turn" defendants
into witnesses.
"The Associated Press reports that the government has dropped three life
terms without parole and a total of 546 years in prison sentences to win
the cooperation of four witnesses. In addition:
Floyd Carlton faced life in prison plus 145 years for flying cocaine into
the United States. His cooperation got him out of jail last December after
he had served three years, and prosecutors let him transfer his assets -
acquired with drug money - to the United States. The taxpayers also picked
up the tab to support Carlton's wife, children and a nanny.
Ricardo Bilonick, who faced 50 years for running drugs, can keep $3.9
million in drug-related assets and was assured of no more than a 10-year
sentence in exchange for his testimony.
Robert Steidinger, once called the No. 1 man in the United States for one
of the major drug cartels, agreed to testify in return for a federal
guarantee of a sentence of ten years or less. When he gets out of jail, he
won't have his $14 million Florida home, which the government seized. But
he'll still enjoy his bank accounts, a Mercedes Benz, his 40 foot yacht, a
speedboat, airplane, two AK-47 assault rifles, an Uzi and a submachine gun
-- all of which the government agreed to leave untouched in return for his
testimony." Unquote.
The editorial called it a "despicable affair all around." "Regardless of my
opinion and yours, it appears the power of a prosecutor to plea bargain is
virtually unlimited, including giving away millions of taxpayer's dollars,
allowing convicted crooks to keep and enjoy the bountiful fruits of their
criminal activity, and allowing a convicted felon to keep and own two
assault rifles and two machine guns! (Isn't that against the law?)
Keep that in mind if you expect to be paid 50% of fines and forfeitures. A
significant part of the assets can be given away by a prosecutor to get an
easy conviction. When there are millions of dollars involved, either
prosecute the case yourself or take it into consideration when negotiating
for rewards.
Plea bargaining is ingrained into the justice system. It's a judicial
system pressure valve for overcrowded jails, crowded courts, and overworked
prosecutors, budget cuts, resistance to more taxes to build prisons, and
more and more laws to keep criminals in jail. All put strain on the penal
system. (Perhaps it's time to decriminalize "victimless" crimes.)
Many first offenders receive deferred sentencing to spare the individual a
criminal record as well as to save the state costs of a jury trial and
prison. These cases, plus those dismissed from lack of evidence (protected
snitches, plus evidence mistakes by police, legal technicalities, and
quirky judges) cancel rewards because there are no convictions -- even
though everyone involved knows the defendants are probably guilty.
For example, from "Crisis in the Courts," by Howard James:
"A judge's attitude towards prosecution for certain offenses also affects
arrest practices of the police. In one large city, for example, it was
noted that the number of arrests for prostitution and solicitation declined
sharply during the months that a judge who routinely dismissed such cases
was sitting in the misdemeanor division. [And]... it is not uncommon for
individual judges to regard certain offenses as too trivial to merit any
substantial penalty or even to merit the court's time in hearing them. An
experienced prosecutor is reluctant to antagonize the judge by bringing
these cases to court despite the availability of sufficient evidence to
convict the defendant."
From a pocketbook, What Cops Know," by Connie Fletcher (1990):
"The judicial process is a laugh, a fucking joke. The public is completely
unaware of how the court system is run in Narcotics Court. These people are
let go left and right, not by lack of evidence or by the police officer
screwing up somehow, but just because the judge thinks it's an insufficient
amount. That's the travesty. If you don't catch them with a large amount,
then the judges look at it like you haven't got them big, so we're gonna
let them go. Even though it's listed as a felony, they still throw it out.
Time and time again."
Rookie Prosecutors
Another serious flaw with the justice system is pitting inexperienced State
prosecutors, fresh out of law school, many who haven't even passed the bar
exam, against highly trained and experienced defense attorneys. The recent
William Kennedy Smith's rape trial is an example.
USA Today, December 11, 1991, stated:
"The most remarkable thing about William Kennedy Smith's day in court might
have been the poor performance of prosecutor Moiras Lasch... legal experts
uniformly criticized Lasch's questioning as unfocused, repetitive and
largely to Smith's advantage... "It's the worst performance I have ever
seen in a court-room cross-examination", declared trial lawyer F. Lee
Bailey, a Court TV commentator. It was rank. It was gross." Miami lawyer
H.T. Smith who worked with with Black in the public defender's office
agreed. "We knew (defense attorney) Roy Black was good. But nobody
suspected the prosecution would be so bad. It's been a total mismatch of
lawyers. It's really not fair to the people of Florida."
* * * * **
Anyone interested in law reform should read three excellent books on that
subject: "Rough Justice" (Days and Nights of a Young D.A.), "With Justice
for None," and "Crisis in the Courts." The first two are currently
available in softcover editions. The third is out of print but may be found
in libraries. These books reveal how state prosecutors and public defenders
learn their trade and acquire experience. During their on-the-job-training,
they lose more cases than they win -- for obvious reasons. Then, after a
year or two, when they have the required experience to become proficient,
they leave for better paying jobs.
Rookie state prosecutors and public defenders use the system as basic
training and a stepping stone to better paying jobs. That's not all bad for
fledgling lawyers and the court system in general. Where else can they get
their hands-on experience? However, in the process, the current system uses
the defendants involved as guinea pigs.
The point is, CrimeFighters should be aware many prosecutors are often
rookies, inexperienced, overworked and underpaid, who would much rather
plea bargain to lesser charges for a guilty plea than lose a case. When a
case goes to trial, as it will if the defendant has any money and can
afford a battery of lawyers and "expert" witnesses (as in the Kennedy
case), the odds are more in the defendant's favor. In such a mismatch, the
odds are stacked against the CrimeFighter who may be depending on a rookie
prosecutor to win the case against a seasoned lawyer.
When the case involves large sums of money available from Federal laws and
significant fines and forfeitures, it's better to use Qui Tam and hire an
experienced lawyer on a contingency basis. Paying a good lawyer 30 to 50%
of your share of fines and forfeitures might be smarter than relying on a
rookie prosecutor. ("Half a reward is better than none.")
West Virginia's Supreme Court Justice Neely mentions in his book, "Take
Back Your Neighborhood," that adding more police to obtain more arrests and
convictions will also require additional prosecutors and judges because the
court system is already overburdened and at the point of collapse. This is
why the present system won't change -- there isn't enough tax money to pay
for doubling or tripling the number of prosecutors, court rooms, related
facilities, and jails.
Prosecuting criminals by inexperienced prosecutors results in fewer
convictions of serious crimes. That may be an unadvertised, intentional
benefit to the justice system because it alleviates overcrowding in jails.
However, it fails to provide true Justice to the victims of crime who
rightfully expect the perpetrators to be punished. It is also detrimental
to anyone relying on felony convictions for payment of rewards.
Other Problems and Solution
Problem: Police are severely restricted by their job descriptions and what
they are expected and required to do. Officers seldom spend more than 3 to
5% of their time on crime detection and prevention. Doubling the size of
the police force won't solve the problem. All it will do is increase local
taxes to pay for them, putting the community even deeper in debt that will
reduce and severely restrict other vital services.
Solution: Paying prompt and meaningful rewards would provide the incentive
for tens of thousands of CrimeFighters who would be volunteer patrolmen and
undercover agents, paid on a commission basis. No increase in local taxes
and no long-term financial commitment for million-dollar pensions are
required. In most situations, the lawbreaker would pay the rewards via
lawsuit awards as the alternative to jail.
* * * * * *
Problem: Plea bargaining is a permanent safety valve for the judicial
system. It can't be eliminated. However, it effectively circumvents or
minimizes current rewards that are paid only on a conviction of a felony.
Solution: CrimeFighters can use Qui Tam to control plea bargaining, and
when possible and practical, extract an alternate reward from lawbreakers
themselves via civil suits. Plea bargaining by Crimefighters is still
available and used to alleviate the strain on the courts and penal system.
* * * * * *
Problem: Prosecutors are almost always inexperienced, overworked, and
underpaid. There isn't enough money available now or in the future to
double or triple the number of assistant prosecutors in large cities that
desperately need reinforcements.
Solution: When significant rewards are available, CrimeFighters would be
the prosecutors and negotiate plea bargaining for 90% of their arrests.
Instead of taxpayers paying the salary of state prosecutors, lawbreakers
would be forced to pay CrimeFighters via civil suits when they can afford
it. When plea bargaining isn't successful, and there is sufficient money
involved in potential fines and forfeitures, CrimeFighters would hire their
own, experienced lawyers on a contingency basis. Only five to ten percent
of CrimeFighter cases would be turned over to state prosecutors. When law
enforcement agencies want to prosecute lawbreakers, to get credit for the
case plus 50% of the fines and forfeitures, they can negotiate payment of a
suitable reward in exchange for prosecution rights.
F9 for next Chapter