To plead or not to plead--this seems to be a question which draws a lot of interest, and no shortage of advice for the person faced with the choice. There are conflicting factors to consider; after all, the issue involves losing a (perhaps substantial) part of a lifetime. Then there are the political impacts of a plea deal, and the question of the price others will pay for the decision.
It has always been interesting to me to observe the inverse relationship between verbal fanaticism and personal risk. It's not a one to one ratio, but in general it seems that those who most passionately urge others to sacrifice all for the Cause, whatever it might be, are those least likely to place themselves in a similarly dangerous situation. Talk is cheap, and safe, and often uninformed. Having been through the process myself and subsequently spending three years sitting behind the clerk's desk in the prison law library, perhaps I can at least offer some information.
Understanding the context in which a plea is negotiated is important. Some people are blissfully ignorant of the legal system and imagine there is a chance of actually winning an acquittal. Sure there is! In the federal courts, 98 percent of cases which go to trial end in conviction. This is not a reflection of the actual guilt or innocence of most defendants, but testimony to the incredible power wielded by prosecutors. For all practical purposes, an indictment is the same as a conviction for most individuals. In the last 20 years, Congress has systematically dismantled the mechanisms which were supposed to protect citizens from the overwhelming power of the state in criminal matters. There is not enough space here to thoroughly detail and document this statement, but for the purpose of this article it is necessary to mention some of the realities faced by a defendant. The playing field is not at all level.
The first point to understand is that guilt and innocence are irrelevant. In prison, I read a lot of case law, and talked to dozens of people in depth about their situations, and read their paperwork. At a very rough guess, filtering out the liars and about half of all prisoners there for so- called crimes involving recreational chemicals, probably between 10 and 15 percent of the inmates had not done what they were convicted of doing (at least where I was incarcerated). But nobody except the accused and her personal circle give a damn.
The System is a bureaucracy, and like any bureaucracy the primary goal of the people staffing it is personal comfort with minimal risk either to income, status, or peace of mind. Defense lawyers, with significant exceptions, are just players in this game. They have come to terms with the moral difficulties which may have initially troubled them until they realized that maximizing income and fully representing their clients are mutually exclusive goals.
A plea bargain is usually in an attorney's best financial interest since it increases his hourly income. Plea bargaining is usually in the defendant's best interest as well, since an acquittal is so unlikely. Prosecutors are also best served by pleas. They are scored by the number of scalps they hang on the wall, not the guilt or innocence of the scalped, or the probity of the scalping technique. Judges are constantly engaged in a struggle to clear their calendars, and the workload increases at a pace which far outstrips their budgets. They want to see cases cleared, and since almost all judges are ex-prosecutors, they are generally unconcerned with the guilt or innocence of the accused. They love pleas, because they keep judges looking good and they avoid costly trials.
So the self-interest of all participants in the System is generally best served by plea bargaining. Obstreperous defendants who do not yet understand that they are merely raw meat in the grinder can present problems. An array of poisoned sticks and ghastly faux carrots has been developed to encourage docility and ensure the smooth operation of the bureaucracy. If everyone insisted on their constitutional right to a fair trial, the System would break immediately.
Going to trial almost always means far more prison time than you would receive with a plea bargain. Everyone is pretty open about this: if you insist on your right to a trial, you will be punished severely. Not for the offense, you understand, but for taking up the valuable time of the bureaucracy. I am familiar with cases in which an outraged defendant declared his intent to vindicate himself in open court and damn the costs. The prosecutor simply files an expanded superseding indictment upping the number of counts from, say, three to 27. Since each additional count adds to the length of the possible prison term, in this instance the worst possible verdict jumps from five years to 50, or life. With stakes that high, and the odds at trial so poor, who can afford to risk it, innocent or not?
There are further inducements to plea bargain. Should you go to trial on that 27-count charge and against all odds manage to win acquittal on all but one count, it still doesn't do you much good. Incredible as it sounds, the case law is very clear that the judge can sentence you on that one count as if you had been found guilty on all of them. And very few juries are unwilling to give that nice hardworking prosecutor at least a small victory.
Deciding whether or not to accept a plea bargain is not a choice between a noble theatrical trial and a cowardly withdrawal from fair combat in the name of Right, Truth and Justice. The System will ensure that those larger issues are never raised in the trial. The question is how much of a lifetime is going to be spent in miserable conditions, and for what gain.
Only the person facing the dilemma has a right to answer that question. We are all human animals. Each of us is involved in unique relationships with other critters, the land, with our own concepts of right and wrong. It's pretty arrogant to dictate to someone else how long she or he should be willing to spend in prison in the name of higher principles.
The highest price for a stretch in prison is often paid by someone other than the prisoner. Marriages suffer terribly. Children are left without a parent, and may feel abandoned. The financial consequences of a stint in the slammer are seldom positive and frequently disastrous for families. A few years away is bad enough. But as the years tick along toward the decade mark, the damage and distance frequently become insurmountable obstacles for relationships.
I saw many men lose their wives and kids while I was in. Who has the right to decide to risk letting a child grow up without a parent? I don't know if anyone besides the parent and child should have much to say about that. There are many such issues, because we're messy, complicated critters. No ideology, including "radical environmentalism," whatever the hell that is, begins to address the complexity of real life. If someone facing time takes an honorable plea bargain which doesn't involve cooperating with the government- meaning she or he refuses to implicate anyone else or give any information at all beyond "I did it"--then the rest of us would do well to accept and support that decision.
That said, here's the other side. I accepted a plea bargain after I tried to talk my codefendants into refusing it, because I felt that we had a moral/spiritual obligation to fight it to the end. I could not refuse for myself alone because it was a package deal; my refusal would have screwed it up for everyone else. It didn't feel good, and I am still not certain that it was the right thing to do. But it's done, and no one will ever know how it would have turned out had we continued.
I have to acknowledge that on some level it does feel like a failure to have let the trial end that way. But I also wonder if I had the right to do things which cost my daughters four years without a dad. Complicated stuff. Whatever answers there may be aren't found on bumper stickers. Most of the people I know are just trying to do the best they can, and that effort doesn't come to a halt when you're enmeshed in the corruption and incompetence of the legal system. To you who find yourself looking down the barrel of that gun: keep your integrity above all else. Puzzle it out as best you can and do what's right. I send you support and respect and appreciation. The rest of us would do well to maintain a little bit of reticence.
Mark Davis is one of the Arizona 5, a group of activists infiltrated by the FBI in 1989. He was recently released after four years in federal prison and is on parole until fall, 1996. His parole officer prefers that Mark look like a Republican, so don't expect much fireworks for the next 16 months-being a martyr was fun, but once was enough. Mark will come and talk with you if you want. Contact him at PO Box 567, Prescott, AZ 86302.