Mark Bennett, at his blog Defending People, recently published a poignant post concerning plea negotiations. Specifically, it addresses the tactic used by prosecutors where, early in the case, they say “We can deal this now for X-years, but tomorrow it goes up.” He compares this tactic with haggling for bangles and bracelets at bazaars in remote overseas vacation spots.
This happens in our military justice system in almost every General Court-Martial prior to the Article 32 Investigation (military grand jury equivalent). I hear it ad nauseum: “If we have to go to a 32, the deal goes up.” The warning does nothing more than piss me off.
Shockingly, the deals are usually the same, even mere days prior to trial.
Bottom line: an alleged crime has a price to be determined by a finder-of-fact, and it is not proportional to the amount of effort expended by prosecutors. Before writing this, I reviewed the guidelines and relevant factors for sentencing at a court-martial. Severity of the crime? Check. Rehabilitative potential. Check. Deterrence? Check. Retribution? Check. Nowhere does it mention “prosecutorial effort” or “he may receive a greater sentence if he insists upon exercising his various rights prior to trial.”
Check out Mark’s post. He nails it.
Argue the facts, not how hard your job is.