People v. State

fairly undermining public confidence in the administration of justice
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Accepting Responsibility

April 16, 2011 By: John Kindley Category: Jamison Koehler, Jeff Gamso, Punishment, Trial Tax

Jamison Koehler has an interesting post up On the Defendant’s Acceptance of Responsibility at Sentencing. I weighed in with a comment, observing:

“Punishing” a defendant for refusing to “accept responsibility” by admitting guilt is completely out of line. It is, however, appropriate to “reward” a defendant who saves the state the trouble and expense of trial by pleading guilty. A guilty-in-fact defendant might internally be genuinely remorseful for what he’s done — but this laudable spiritual attitude doesn’t mean he’s morally bound to accept as a good thing the expiation of his sins the state has in mind for him. The state — quite appropriately — commonly calls into question the sincerity of any remorse expressed by the defendant at sentencing, and argues that the defendant is “sorry” he got caught. We’d all be better off if the “acceptance of responsibility” charade was taken completely off the table.

Mark Draughn in a post about Jamison’s asks:

Who among us, if caught committing a crime, wouldn’t be willing to apologize in as sincere-sounding a manner as we possibly can, if we’re told it could knock months or even years off our sentence? . . .

You know who’s going to have trouble accepting responsibility? People who are factually innocent. . . .

Requiring defendants to “accept responsibility” is a policy that rewards the truly guilty while punishing the truly innocent. . . .

To me, it feels as if the courts are engaging in a policy of collective moral cowardice. It’s as if judges don’t really believe the system works. The jury has been told to trust the system, and they do, rendering their verdict of guilt based on what they saw and heard during the trial. For the judge, however, that’s not good enough. He’d like to tie it up all neat with a confession just to be sure, even if the confession is coerced by a threat of a tougher sentence.

I can understand why police want to make a suspect confess. It’s part of the investigative process, part of building a case. But this practice of pressuring a person to confess after conviction reminds me of nothing less than the Moscow show trials under Stalin, when those accused of crimes against the state were coerced into confessing to whatever crimes they had been convicted of in the rigged trials.

Jeff Gamso comments on Mark’s post:

And there’s not supposed to be a penalty for exercising your constitutional right to trial. But if you insisted on going to trial, it’s hard to say that you were accepting responsibility, so the sentence goes up. Not for going to trial, but for not pleading guilty.

A person who is in fact guilty of a crime has not only no legal obligation but also no moral obligation to do harm to himself by confessing his guilt to the state and facilitating his own conviction and punishment at the hands of the state. It is therefore entirely inappropriate to punish at sentencing a defendant who insisted on going to trial for a non-existent moral failing intrinsic to the defendant. On the other hand, the public does have an entirely legitimate interest in resolving criminal cases by plea rather than trial, based not only on the public expense of trial, but also on the remote possibility that a jury might fail to convict a defendant whom the evidence in fact proves is guilty beyond a reasonable doubt. It therefore behooves the prosecution in plea bargaining and/or the judge at sentencing to give defendants who plead guilty some incentive and consideration for saving the public the expense and the risk of trial. Such consideration has nothing to do with the moral blameworthiness or praiseworthiness of the defendant.

This is still, as Jeff Gamso calls it, a “nasty” business, and still stinks of a “trial tax,” since the bottom line is that a defendant who is convicted after trial is likely to be sentenced more “harshly” than if he’d pled guilty, even though defendants who are convicted after trial and defendants who plead guilty “deserve” the same sentence. (It can be safely assumed that defendants who plead guilty aren’t motivated to do so by the desire to save the public the expense and risk of trying them, nor should they be.) But consider: A person who commits a crime but isn’t caught goes free, even though he “deserves” punishment. A person whom a prosecutor suspects is guilty but whom he believes a jury is only 50% (or less) likely to convict should also be allowed to go free (since a prosecutor must be himself convinced beyond a reasonable doubt by the admissible evidence that a defendant is guilty in order to ethically prosecute him, and a 50% likelihood of conviction just doesn’t cut it). If a 50% chance that a jury will fail to convict justifies a suspect going free entirely, a 1% chance that a jury will fail to convict justifies a suspect “going free” for some correspondingly lesser amount of time. (A judge can appropriately take this into account at sentencing even for a defendant who enters an “open plea” of guilty after the prosecution refuses to offer any plea bargain.) Obviously, after a defendant is convicted by a jury there is a 0% chance that a jury will fail to convict him. (On the other hand, I think it would be appropriate for a judge to take into account any residual doubt he may have about the guilt of a defendant who’s been convicted by a jury in sentencing him.)

The more ethically a prosecutor does his job — by only prosecuting defendants who given the admissible evidence are almost certain to be convicted after trial — the smaller should be the consideration necessary to induce a defendant to plead guilty, and the smaller the corresponding “trial tax.”

As I see it, the practical upshot is this: A convicted defendant who at sentencing tearfully expresses to the court and the victim his remorse for his crime should get no consideration from the judge in his sentencing decision for doing so. This protects wrongfully convicted innocent defendants who have nothing to apologize for, and has the incidental but not trivial benefit of ensuring that any such expressions of remorse are sincere.

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