For you, a special deal. Today only.

reserve enlistment
I do solemnly swear that, if accused of a crime while in the military, I will allow the prosecutors to punish me with minimal effort... Image by Robert Couse-Baker via Flickr

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.

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4 thoughts on “For you, a special deal. Today only.

  1. While I agree that the Government should base a deal on the facts, you cannot ignore the additional value of time and effort. This isn’t a matter of how “hard” the job is; rather, it is a matter of resources.

    Come to the table and save some resources, and you shall be rewarded. Otherwise, the only value of the deal for the Government is the guaranteed result (which is significant, don’t get me wrong). But there is more at play. Particularly in a busy jurisdiction. You cannot discount the value of preservation of time, expense, and inconvenience (with regard to witnesses, not the trial counsel, whose job it is to be inconvenienced).

    1. Of course. The nerve of some people making the government spend time and resources in order to prove guilt and assign a prison sentence–especially at one of those “busy jurisdictions.” Are those the ones who can only afford to assign two prosecutors per case?

      Its enough to make a prosecutor want to put someone in jail, especially when they are one of those pesky innocent people.

  2. That’s an unfair extrapolation of the point. My point is that the benefit inures to the accused both because he/she admits culpability and enables the Government to conserve resources. There should be a concession on the part of the prosecution in recognition of both of these elements – not just one.

    My goal was never to take a case without full recognition of all the costs – not in anticipation of getting a plea. That’s not “justice” (in quotes just for you).

    1. “enables the government to conserve resources.”

      That sounds like an important principle to consider. I just missed the case or rule for court-martial that establishes it as an important consideration in determining an appropriate sentence. Perhaps it is in the military judges’ benchbook…

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