Advertising - Plea Bargaining: An Unconstitutional Delegation of Judicial Power to the Executive Branch of Government; a Free-Market Solution to Unconstitutional Plea Bargaining and How a Victim of Prosecutorial Abuse, Working Alone, Can Change the System

First Published 05/21/02; Last Update: 05/13/07 21:15


Here is the website of attorney Carl E. Person Attorney Carl E. Person's Website Discussing His Legal Representation in Various Types of Legal Matters.

You may note the word "Advertising" being added to the websites of New York attorneys such as myself. The word "Advertising" is being required for use in the websites of New York attorneys by new rules effective in early 2007. Incidentally, I was the first attorney in the United States to sue for the right to advertise as an attorney, which suit I commenced in 1975. Prior to 1975, it was illegal for a lawyer in most if not all states to advertise. The U.S. Supreme Court ruled in 1975 that the public is entitled to obtain information of value to them as consumers and held that there was a Constitutional right of free "commercial speech", including the right of the public to have prescription prices advertised and the right to have lawyers advertise what they do and other information about their profession of value to consumers. Civil rights litigation obtained this important right for the public to receive to be able to obtain commercial speech from lawyers, doctors, other professionals, pharmacies and others.


After years of working on the problem of prosecutorial abuse, I have come to the conclusion that it is very difficult to overcome in a typical case of abuse. Once in a while, some relief can be obtained, but not often enough. The only way to deal with the problem, as I see it, is political. You need to run for office with the promise to voters that if you are elected you will try to appoint a "Town Attorney General" or "City Attorney General". This is like having a new sheriff in town, not one with a gun, but one with the money and legal authority to go into court to protect the rights of individuals against the ever-increasing loss of many of their rights, including the loss of rights through prosecutorial abuse.

This may be your first time to my website, looking for information to help yourself or a member of your family who is the victim of prosecutorial abuse. Victims of prosecutorial abuse not only include the criminal defendant, but includes the defendant's family members, as well.

What I will ask you to and every other victim of prosecutorial abuse to do is to take the abusive criminal-justice system away from the abusers by you, the victim, in two distinct ways:

FIRST: Create an Email List of Residents and Small Businesses in the Community

Before describing the main event, I want to describe a preliminary event that you can organize, which will help you achieve the primary (SECOND) event described below. This FIRST event is to create a new medium for your community to provide the information to residents and local businesses that the local media do not provide, either because they are owned by the major corporate interests, or because they are afraid of losing advertising they have (or hope to get) from major corporations such as Wal-Mart, other top 100 retailers, and other major corporations.

I can't overemphasize how important it is to create a permissive e-mail mailing list for your community. The list must be "permissive" (i.e., with the explicit permission or authorization of each member of the list - to avoid charges of illegal "spamming", with a link put into each communication enabling them to remove themselves from the list with no hassle). The permissive e-mail mailing list becomes your own newspaper to promote the interests of the community, which generally are not the interests of the persons or corporations which own your local commercial media.

The size of your community is obviously a factor. I am not suggesting that you create an e-mail mailing list for New York City, Detroit, Los Angeles, Tulsa or other large city. Instead, I am talking about towns and villages (even small counties) having a total population of 25,000 or less. I'm currently working with one town of about 12,000 population, and 3,000 homes. If it takes an average of 15 minutes per home, then 3,000 homes would require 750 hours of work. If someone wanted to fund this at a minimum wage level (say, $6/hour), the cost of creating the list would amount to $4,500, a lot less than purchasing the local newspaper for $500,000 or $1,000,000 or more.

This new medium for your community would be a permissive e-mail mailing list consisting of the e-mail addresses for most if not all of the residents and small businesses in your community. The small business addresses can be obtained from the local Chamber of Commerce, or by stripping the addresses from its website. Always remember not to spam, and that you need approval from the business or resident before adding the e-mail address to your community permissive e-mail mailing list.

Obtaining the e-mail addresses of residents is more difficult. Whereas businesses are confined to business areas and can be reached by foot or bicycle within 1-5 days for most communities in the United States, residents are scattered over an area perhaps 20 times the size of the area dedicated to businesses, with much greater time involved in creating the desired list.

My suggestion is to find groups of interested persons, such as unemployed persons, seniors, individuals employed only part-time, persons on public assistance, college students, high-school students, church members (especially churches catering to minorities and the poor). They can do the needed leg work, if they can be shown how the permissive e-mail mailing list can and would be used to further their specialized interests. In other words, try to share the workload by putting together a coalition of interested local groups to provide the people you will need to put the list together.

Before giving you some pointers on what you can do to create the list most effectively, I want you to understand how the list would help to cure the problem that brought you to this website.

Prosecutors are elected through backing by the local press (or a major part of it) and they have ready access to the press after they are elected, so that the local press prints almost anything offered by the prosecutor and his/her office. On the other hand, the victims of prosecutorial abuse are not able to get their story told, for a variety of reasons, but mainly because the disclosure of prosecutorial abuse would make the prosecutor and his/her mouthpiece (the local press) look bad, and cause a major reduction in the ability of the local publications to mislead voters about what is going on in the community.

A permissive e-mail mailing list including the e-mail addresses of most residents and small businesses in the town or village would enable the owners of the list (perhaps you and a coalition of groups discussed above) to create your own "newspaper" or equivalent (really, a weekly newsletter) to send to the list providing information of value to them that the local media ignores. What type of information? Well, how about prosecutorial abuse and the damage that it is causing to your community. You might get a local college professor of economics to estimate the damage done to the community if 20% of the prosecutions are unjustified, and done solely to enhance the political career of the prosecutor and/or his/her assistant prosecutors.

What else could you say in the newsletter? How about explaining to your list members how Wal-Mart's low prices are causing the town and county to see its valuable jobs being transferred to China and other countries with substantially lower wages. How about telling residents and small businesses that they could have FREE broadband service, FREE healthcare coverage, REDUCED real estate taxes (for owners) and REDUCED rent (for tenants). You have never seen anything like that in any of the local media, have you?

The purpose of the permissive e-mail mailing list is to have a way to get a sufficient number of people in your community informed at the same time to be able to get them to take action that would be of benefit to them and the rest of the community. An occasional item in the local newspaper (especially when the item is incomplete, and has no followup) is basically worthless. You need to have control of the medium to be able to provide repeated information about the problem to be able to educate the local community members. There is a saying about advertising, "The more you tell the more you sell!" Also, as to the efficacy of advertising the radio salespersons will tell you that recency and frequency are important factors. You have to keep repeating the message because not everyone understands the message the first time they hear or read it. The first time there may only be 1% of understand the message. The next 2-10 times might bring the understanding level up to 25%, and thereafter with repetition you can bring the understanding percentage to much higher levels, to be able to prevail in a contest (such as election) where those issues are raised.

Also, email will help you identify and motivate candidates for local office; help to market their candidacy to the local residents and small businesses; and help to motivate local voters to vote these candidates into office.

Pointers on Creating the Permissive E-Mail List for Your Community

  1. Have a written form authorizing the addition of the resident's or businessperson's e-mail address to the list, including the person's name, address, town, ZIP Code, date of authorization, signature line for signature; and instructions for returning the form by email (after being scanned); by mail or given to the person who gave the form to the signer.
  2. Create a war room somewhere to treat this as a battle, with breakdown of residents and businesses into categories, such as by area, or by being known to specific people, or by having the email address and only need to get permission, or by bicycle route or foot route
  3. Try to get organizations to use their email list to solicit members for you, which will give you a head start
  4. Consider raising money to pay unemployed, senior, underemployed or students to gather signatures on the authorization form at so much per signature (after you verify that the email address works, and that there is no demand to be removed from the list after you send the first email to the new subscriber; you might want to pay anywhere between $.25 and $1.00 (perhaps more) per subscriber.
  5. Try to meet with organizations and encourage each person in the room to get 10 authorizations (subscriptions) for you
  6. After you have a certain number of names on the list, try to get each member of the list to get 10 additional authorizations (subscriptions) for you
  7. Work with the owners or editors of the lesser media in the area, or ones that are independently owned, if they are willing to risk loss of advertisers by getting involved with your list-creation efforts
  8. Go to unemployment and public assistance offices to try to find interested people to subscribe
  9. Work with local organizations such as churches to have computers, assistance and email addresses for people in the community who lack a computer, email adddress or computer skills - and try to market this through signs in stores owned by persons on your list
  10. Get college students and high school students a lesson in practical politics by getting them involved; they need to understand Part II, perhaps, to motivate them sufficiently to help out in creating the Part I list.
  11. Communicate with me, Carl E. Person, for any insight or help I can give to creation of your community "permissive e-mail mailing list; you can reach me by email at
  12. Look at the first of a series of websites I am creating -- -- which makes use of permissive e-mail mailing lists to achieve similar political objectives. will keep you abreast of my more recent websites, as they come online.

With this said, now look at my SECOND point.

SECOND: Run or Get Someone to Run for Local Office

The second thing that you can do is to either run for elective office yourself, or encourage the right person (such as a friend, relative, associate or neighbor) to run for local elective office (such as for council, mayor, selectperson or similar office for running of a town or village) in your own town, village or county (or in a nearby town, village or county - even if you don't live there - residency requirements can be overcome in many instances in court).

You should run on the 16 election-issue platform I have set up for this purpose (whether the candidate is you, me, or someone else you can encourage to run). See my website and 16 election issues at Website for Candidates for Local Office - 16 Election Issues.

At your request, I will try to come in to your town (at my own expense) to campaign for you or other person running on my 16-point platform (or a substantial part of my platform, including the "Town Attorney General" part).

Once elected, you or other candidate running on my platform should do what you can with the other members of the town council to have me or another similarly qualified attorney as "Town Attorney General" for your town, village or county. The Town Attorney General is to ensure that the rights of the residents and small businesses of your town are enforced against the major corporations and others that have been systematically depriving your town of its jobs, its services, its higher-paying jobs, its standard of living - and sending the assets of your town to foreign countries. There are legal ways to stop this from occurring and to recover damages for the community for jobs already stolen. The Town Attorney General knows what to do and should be appointed to do his/her job, for the benefit of you and the other residents of your community, including its small businesses.

If this takes places, your town will lose its abusive criminal prosecution system. Abusive prosecutions are, as you known, very costly to the town and its residents, destroying the personal and economic lives of the victims, and imposing huge, wholly needless costs on the community, just to give overzealous prosecutors a win record against victims who have no money to fight, and who are bound to lose because of the prosecutorial advantages that, in New York City, enable federal prosecutors to put their criminal defendant victim (felony defendant) in jail 99.5 to 99.8% of the time. This is not a fair criminal justice system. It is corrupt, abusive, oppressive and can be stopped at the local level of government, by the appointment of a civil prosecutor ("town attorney general") who will sue large corporations for the injuries they have been inflicting upon the residents and small businesses of your town, and to distribute the lawsuit recoveries to the residents and small businesses of your town, to the extent of perhaps $5,000 to $20,000 per year per family on the average or, better yet, to pay for healthcare and dental care and free broadband service to all residents and small businesses in your town. With this wholly predictable consequence for a small town or village that appoints a town attorney general, a criminal prosecutor becomes a relic and had better watch out or the criminal prosecutor may wind up squaring off against the civil prosecutor in his/her role of enforcing the civil rights of you and the other members of your community.

I hope that by now you see the potential of what I'm talking about. The best way for you to fight prosecutorial abuse is to help me get someone into your town who can do what you need to have done, which is to have legal representation to enforce the rights of individuals and small businesses against the illegal conduct of major corporations and others who disregard the law and hurt your community in their never-ending effort to strip your community of its jobs and other wealth, and send the jobs to other, low-wage countries, while asking you to continue buying their high-priced products. This has got to come to an end. Appoint a town attorney general to show you how to protect your town or village from losing whatever jobs it still has, and how to bring back many good jobs to your community. Study my 16 election issues with this in mind. There are things we can do in your town, but we need to get into politics to accomplish what needs to be done. This means that YOU need to run for office on my 16-point program and get the ball rolling.

When we have the first community in the U.S. appointing a town attorney general, and the residents of the town start seeing better jobs, free healthcare, free dental care and free broadband service, you and I know that nearby communities will demand the same thing, and by that time you and I will know that we are on a winning course to taking back our country.

You can make this happen, and I'm here to help.

Please look at my town attorney general website, at My Town Attorney General Website and then look at my election issues website, if you haven't done so already, at My 16-Point Election Issues Website and then look at my website for my first political race in the real world, for New York Attorney General (Green Party) at Website in Support of My 2006 Candidacy for New York Attorney General. [Note: The 2nd Circuit refused to grant an injunction putting me on the ballot.]

Now, I've said what you really need to know, and I invite you to continue reading the rest of my discussion of what you can do to fight the prosecutorial abuse which brought you to my website.

Having said all the above, let me introduce myself. I am Carl E. Person, an antitrust and civil rights litigator in federal and state courts for more than 40 years. I have created the concept of the Town Attorney General, both in a book, Saving Main Street and Its Retailers ( and in an Off-Broadway performance ( My picture, in costume for the presentation, is at Carl E. Person in Costume of U.S. Solicitor General and the SEAL for the Office of Town Attorney General (designed by Glen Brandt) may be seen at Seal for the Town Attorney General

Fighting the Prosecutorial Abuse Is Difficult, and Usually Non-Successful

I have outlined in my four related websites (;;; and the various things which a lawyer could try to fight prosecutorial abuse in a specific case. In actual fact, when tried, the results generally are not favorable, although I strongly suspect that wealthy defendants with power law firms can get greater mileage using the techniques I outline than typical criminal defendants, who have no money and often inadequate or unwilling counsel (burdened with too many cases and the knowledge that whatever they do will probably be a waste of time, and antagonize the prosecutor, who in our new criminal justice system has become the judge and jury for most defendants). But this is not what I want to discuss with you.

How You Can Reduce Prosecutorial Abuse in Your Town

The time you (and your lawyer) spend in trying to overcome prosecutorial abuse is generally wasted, and I recommend that you spend the time trying to change the system which encourages prosecutorial abuse. The criminal prosecutors achieve or expect to achieve fame, fortune and power by racking up criminal-case victories regardless of the guilt or innocence of the accused under existing principles of law. They readily learn that the way to become elected or appointed to Congress, the state or local Legislature, a judgeship, district attorney or U.S. Attorney position or other governmental office, is to get and publicize convictions, and to maintain that they are just in spite of overwhelming evidence to the contrary in too many cases.

The consequences for the overzealous prosecutor is too often the sought-after fame, fortune, power and political position, but the victims (including virtually everyone in the community) are left to pay the bill for wrongful incarceration, excessive criminal proceedings, destroyed families, wrongfully-confiscated property depriving a newly-accused defendant of the funds to defend himself/herself, wrongfully-impoverished families requiring governmental assistance, loss of skilled workers, loss of voters needed to strike a more just political balance in the country, and various other consequences which need to be explored by the press and book authors.

The way of halting this ever-increasing trend of prosecutorial abuse with resulting evils (directed against individuals, I might add, not against corporations which are difficult to put in jail) is to switch the emphasis from criminal to civil, from criminal prosecutor to civil prosecutor or what I have named a Town Attorney General, or "Little Eliot Spitzer". As most of you know, Eliot Spitzer was New York's elected State Attorney General who (until elected and sworn in as New York's newest Governor) was enforcing laws against major corporations that the federal government chose not to enforce. In 2004, Eliot Spitzer brought or threatened lawsuits against various financial corporations and others that resulted in payment to Spitzer's Attorney General Office of $2.3 billion in settlements, or $115 per resident of New York State.

In a small town, a "Town Attorney General", when bringing meritorious lawsuits against corporations that are injuring the town, should be able to have settlements after deducting expenses of litigation amounting to about $5,000 to $10,000 per family in the town, more than enough to provide FREE healthcare and eliminate property taxes for all residents of the town.

If you, as a prospective voter, heard two candidates in your town running for mayor, and one of them said he/she has a plan to obtain FREE healthcare and the elimination of property taxes for all residents in the town, and the opposing Mayor wants to have another Wal-Mart or two to come into town, who would you vote for?

Why not be the candidate for mayor and make your argument as the main part of your campaign that you are going to appoint a Town Attorney General, and move the town into civil law enforcement against invisible corporations rather than criminal enforcement against hapless residents who wind up victims and represent huge present and deferred costs to the community to prosecute, incarcerate, feed, clothe, provide medical care, and take care of the family members who wind up as indigents and problem families for the town.

I have a ready-made campaign and campaign website for you with my 16 election issues, at My 16 Election Issues Website for Local Elections. I'm also willing to help you campaign in your town or village (or even a nearby or distant town or village - we can go into court to strike down local residency requirements in many cases).

By doing this you would be able to fight back against the prosecutorial abuse, and actually have a pretty good chance at getting elected to the town's governing body. Then, you would be in a position to have the town appoint me (or some other antitrust and civil rights litigator) as town attorney general, to start a program of enforcing the various rights of the residents and small businesses of your town that are not being enforced by the federal and state Attorneys General, or any federal or state agency, or even by your town, village or county (because traditionally the enforcement of such rights have been through federal or state officials or agencies). Now, with the federal and state governments being an adjunct to the corporate interests that supply the campaign funds, protection for the residents of your town has got to come from the town itself, through a legal officer I have named and described as the "Town Attorney General".

I can help your candidacy. You can call upon me to come into town and put on my show, Town Attorney General Meeting (at no cost to you, the town, or the audience) to explain what I (or another qualified lawyer) could do for the town as Town Attorney General. I describe this presentation or performance in my Town Attorney General website.

The Town Attorney General, if appointed, will create an economic revolution for your town and relegate abusive, over-zealous criminal prosecutors to a minor role, if not defendants in a civil rights suit to enjoin such conduct. The Town Attorney General will fight to enforce the rights of the residents and small businesses of your town instead of trying to put too many of the residents in jail for excessive sentences, and at excessive, wholly unnecessary costs and injury to the community.

This is what you and I can do to stop prosecutorial abuse.

Carl E. Person, "Town Attorney General" and (unsuccessful) Candidate for NY Attorney General (2006)

Part II - Plea Bargaining: An Unconstitutional Delegation of Judicial Power to the Executive Branch of Government; a Free-Market Solution to Unconstitutional Plea Bargaining

Purpose of Website

The purpose of this website is to:

Index and Quick Links to Website Material

  1. The Evils of Plea Bargaining

  2. Judge Neely's Dissent in West Virginia v. Rummer

  3. Judge Weinstein's May, 2002 Decision in United States v. Joyeros

  4. What Constitutes a "Justiciable Standard" in Constitutional Litigation?

  5. Looking at the Market for the Rights of Alleged Criminals in the Nation's Criminal Process

  6. Judges Should Require 10% of Plea-Bargained Cases to Be Tried Anyway, with the Plea Being Undone If the Defendant Prevails at Trial

  7. The Nation's Prosecutors - The Modern Version of the Reviled Court of Star Chamber

  8. Provisions of the U.S. Constitution Being Infringed by the Nation's Plea-Bargaining Systems

  9. Criminal Defense Lawyers Are Leaving the Field - Claim They Are Unable to Represent Their Clients Properly Under This New [Star Chamber] System - 3/4/02 New York Magazine Article

  10. Conclusion: Changes Needed in the Criminal Justice System to Offset the Plea Bargaining Process

  11. Quotations from Works of Noted Constitutional Historians, Including Maitland, Keir and Dicey

The Evils of Plea Bargaining

I, the author of this website, am not a criminal lawyer and am slowly becoming familiar with some aspects of the nation's criminal justice system. If I had more extensive criminal-law experience, I would probably be able to have a longer list of evils associated with plea bargaining. Instead of experience, I am using research and common sense, and the reading of several decisions critical of the plea-bargaining process. Here is my list of evils (with a significant amount of overlapping):

  1. Criminal justice needs an impartial moderator (or judge) positioned between the prosecutor and the defendant, but the plea bargaining system results in an agreement to plead guilty before any judge has gotten involved in the case;
  2. Plea bargaining causes a distortion of economics; without plea bargaining a prosecutor would allocate his/her time and money to choose matters to prosecute carefully, because each choice would be a major financial and time commitment, thereby resulting in a higher quality of case from the prosecutor's standpoint; but when the cost of prosecutions becomes negligible, the prosecutor has a decided tendency to focus on numbers (i.e., number of convictions through guilty pleas) instead of on quality of trials, and a wholly unfair economic imbalance results, so that a slight economic input by the state, through its exercise of unfettered discretion, is able to destroy the lives and property of persons in an amount which I guesstimate is equal to 100 times the cost to the state, which accounts for the nation's high rate of incarceration, and decline in standard of living (to some extent), and loss of faith in the government;
  3. Defense lawyers no longer defend their clients, and have become acceptors of fees as guilty-plea negotiators, as their first step in representation, and then, after the guilty plea is entered, they try to get a reduction of sentence and an increase in the number of criminal defendants by getting the pleading client to turn other persons in (whether guilty or not of any crime) in order to get a reduction of sentence;
  4. Juries no longer get to determine whether a person is guilty or to act as a buffer between the state and its people, because juries have been disbanded for 98% of the accuseds (in the Southern District of New York), 96.5% in the Eastern District of New York, 95% average in all federal courts; and more than 90% apparently for virtually all criminal-court districts and systems;
  5. Judges no longer get to judge matters to determine whether the prosecutor is overzealous, acting unlawfully, or has an insufficient case, just to name some of the things which a judge no longer does in more than 90% of the criminal cases. Prosecutors have no judge looking over their shoulder as to more than 90% of the criminal matters;
  6. Excessive zeal of prosecutors to indict without probable cause on the more serious counts because the more serious counts force the defendant to plead guilty to one or more lesser counts (often sustainable);
  7. The low cost of a prosecutor's office to indict someone (perhaps a cost of $1,000 to $5,000, compared to the cost of defending against the charge, often requiring $150,000 to $600,000, which the defendant usually does not have);
  8. The profitability of prosecutions which through civil and criminal forfeiture actions enable the prosecutors to make a profit on obtaining guilty pleas which reduce the defendant's time in jail and leaves the prosecutor with the defendant's assets, for use in prosecuting others similarly;
  9. The political rewards which go to prosecutors having the highest conviction rates, whether or not the persons convicted are guilty;
  10. Excessive charges to require defendants to plead guilty to lesser charges;
  11. High costs of defense - at $300 per hour, if a proper defense would take 500 to 2,000 hours, the defense would cost $150,000 to $600,000 plus fees of expert witnesses which could cost another $100,000 or two -- which money the defendant does not have (especially when the prosecutor has attached all of the defendants' assets in advance of arrest, to deprive the defendant of the funds needed to defend himself properly);
  12. Courts and judges tend to favor prosecutors (and many judges were former prosecutors and were appointed as judges because of that background, with the hope and expectation that they will continue to support "law and order" as seen from a prosecutor's point of view;
  13. Prosecutorial discretion, which allows the prosecutor to not prosecute his/her friends or political allies or sponsors, while prosecuting the weak and impecunious;
  14. Prosecutorial practice (which is unconstitutional itself) of prosecuting some persons on a selective, arbitrary and discriminatory basis (by not prosecuting other persons known to be doing the same thing);
  15. A defendant is not permitted to have discovery of the prosecutor's expert witnesses to the extent allowed a party in a civil case where only money is involved (instead of the defendant's life and liberty);
  16. Prosecutor's power to manufacturer testimony against the defendant by threatening to prosecute persons who have a relationship with the defendant, thereby requiring the witness to shade the truth (i.e., lie) to be able to minimize the prosecutor's threat to the witness;
  17. Prosecutor's power to manufacture testimony by his/her power to agree to the reduction of a sentence for cooperating co-defendants or current prisoners
  18. Ex parte attachment provisions in civil forfeiture statutes which enable a prosecutor to take all of the known assets of a defendant, sometimes even before the defendant is aware that he is under investigation for any alleged wrongdoing, which deprives the defendant of money needed to buy food, pay his/her mortgage, pay for internet monthly services and especially to pay for an attorney to try to get the attached property back, or to pay for the $150,000 to $600,000 needed for the defendant's defense;
  19. Long pre-trial incarceration of the defendant thereby preventing the defendant from preparing for the criminal trial, by denying access to witnesses, records, accountants and attorneys at the most critical time, the few months before trial;
  20. Imposing bail which a defendant cannot meet, particularly when all of the defendant's assets have been seized in advance; a misuse of bail which is supposed to be set only if needed to ensure a defendant's presence at trial and not to prevent a defendant from being released from incarceration prior to trial (except in cases of murder or persons from other countries apt to flee no matter how much bail is put up, such as drug kingpins and terrorists);
  21. Indictment of a defendant increases the power of the prosecutor and decreases the ability of the defendant to defend himself, because of the financial impact of an indictment and the effect upon friends and associates who may no longer be inclined to help, because of the high rate of conviction (98% in the Southern District of New York, 96.5% in the Eastern District of New York and 95% nationwide in federal courts);
  22. The prosecutor's use of the press to publicize the prosecutor's side of the matter and prejudice the community and jury pool, while the press often is not interested in finding out about the defendant's side (possibly because of the conviction rate, where accusation is virtually equivalent to conviction and incarceration, so why bother to give the other side)
  23. Secrecy of grand jury proceedings which prevents a defendant or the public from learning what has caused a given prosecution to be commenced, whereas the prosecutor in secret can find out that the defendant is not guilty but continue the prosecution in any event, knowing that the secrecy will shield the prosecutor from any disclosure of the truth;
  24. The "ham sandwich" indictment process, which enables prosecutors to indict anyone and anything they choose, without worrying that a grand jury might not go along, anything including a "ham sandwich", as the saying goes;
  25. The inability of defense lawyers to do their job because the cost of defense is not affordable by 98% of the defendants, and the defense lawyer generally does not want to go down the road of defending an alleged criminal at a trial when the attorney cannot get paid; this translates into pressure on the client from his/her own lawyer to plead guilty, to enable the criminal lawyer to get out of the case and look for other clients to represent similarly, all as part of the existing system;
  26. Continuing, substantial and outrageous prosecutorial abuse which has no remedy because (i) it does not take place in front of the judge; (ii) it costs too much to try to oppose with litigation and would prejudice the prosecutor into denying plea-bargain terms afforded to defense counsel and their clients who go along with the system and don't make waves; and (iii) the courts (state and federal) generally are not too receptive to defendants who claim prior to the end of their criminal case that their constitutional rights are being violated by the prosecutor; instead, they have to wait until their criminal case is over (which of course means after they have pleaded guilty), at which time their claims of violation of their constitutional rights have far less opportunity to be heard, and the constitutional wrongs overcome; part of the plea-bargaining process often denies the defendant any right to appeal from the prosecutor's wrongdoing;
  27. The defendant generally cannot complain during the oingoing prosecution to any regulatory body (such as a grievance committee) about the prosecutor's abusive conduct, because the grievance committee is apt to say that this matter should be raised after the prosecution is over; and the same is true as said before about contemporaneous suits for prosecutorial misconduct; much of the litigation will wind up being over whether the civil suit should await the outcome of the criminal suit, and if it does, you know how the criminal suit is going to turn out if there is no relief from prosecutorial misconduct;
  28. The government prosecutor controls whether the defendant's lawyer gets paid, and how much, and when, which inhibits the defense, and makes it probable that the defense lawyer will not get paid for all or a large part of his services, which discourages the lawyer from providing effective representation and causes the attorney in many cases to seek other cases instead;
  29. The prosecutor uses the threat of much greater punishment (resulting from trial) if the defendant does not accept the prosecutor's offer of a lesser sentence through a plea agreement; of course, such threat makes the whole plea-bargaining process coercive and extortionate, which is the main thing at issue when everything else is considered; this is the main issue, as to whether plea agreements are voluntarily entered into when plea agreements are extortionate at the outset, i.e., if you don't accept the deal I'm offering you, I'm going to prosecute you to the fullest extent of the law (or more) and see that you go to jail for 30 years instead of the 3 years I'm offering you. Why wouldn't 98% of the offerees accept such extortionate offer. In fact, they do!;
  30. During the past 20 years, there has been an increase in prosecutorial discretion and power, which has created such an imbalance that there has been a virtual elimination of criminal trials both federal and state;
  31. The prosecutor's discretion not to prosecute is widely exercised, so that only the people who are prosecuted, and not others doing illegal conduct, are faced with the extortionate demands;
  32. Enhancement of control of sentencing by the prosecutor as a result of the "Sentencing Guidelines" and minimum sentences has increased the Government's power to coerce defendants through the plea-bargaining process; and
  33. The sentence differential between trial and plea-bargaining is what makes plea bargaining coercive, and is only a matter of degree different from torture, which is also coercive, and banned by the U.S. Constitution. See John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. R. 3, 12-19 (1978) (plea bargaining is similar to medieval European torture); also, see quotations from Star Chambers research materials at Court of Star Chamber Research Materials - the King's Torture and Confession Administrative Agency.

As United States District Judge Jack B. Weinstein stated in his lengthy decision in United States v. Speed Joyeros, S.A., also known as United States v. Hebroni, Judge Weinstein's 5/9/02 Decision in United States v. Joyeros

There has been a change from a paradigmatic concept of investigation and accusation by the government of almost all persons believed to have committed crimes, tried by judges with a strong role for defense counsel, and discretion in sentencing by the court, to a system sharply reducing the role of defense counsel, the jury and the judge, and whatever protections they can afford the defendant. [p. 4, slip opinion]

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Judge Neely's Dissent in West Virginia v. Rummer

While looking for Judge Weinstein's recent (5/9/02) decision in United States v. Joyeros, I came across a few decisions which referred to his position on plea bargaining. One such decision, West Virginia v. Rummer, shows how plea bargaining is an extremely divisive issue among judges. See West Virginia v. Rummer.

The must-read part of the Rummer decision is Part III. Make sure you read this if nothing else. Part III of the Rummer decision is available by link, Part III of West Virginia v. Rummer

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Judge Weinstein's May, 2002 Decision in United States v. Joyeros

Judge Weinstein for many years has openly opposed the federal Sentencing Guidelines which places handcuffs on the federal judges preventing them from sentencing persons according to how the judge believes justice is best served, and instead forces every judge to mechanically add up the number of months by following a rigorous formula of pluses and minuses based upon different factors, which was designed to treat everyone equally, regardless of the interests of justice, and give them extra time in addition for a variety of reasons too complicated to explore at this moment.

Let Judge Weinstein tell you about it, which is also a must-read decision for persons interested in the evils of plea bargaining. This decision is apt to become a classic in the legal world, and is available by link, Judge Weinstein's 5/02 Decision in People v. Joyeros

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What Constitutes a "Justiciable Standard" in Constitutional Litigation?

If you feel that the system is unfair to you and want to bring suit to have the system declared unconstitutional, the judges will say that you fail as a litigant to present a "justiciable" controversy because there is no standard for use by the judge to determine whether or not you have been injured under law.

When there is no standard, the matter becomes a "political" issue, one in which the courts have no power to intervene. Instead, the courts will tell you to go to your newspapers, television and radio stations, cable channels and magazines, and now internet, to try to develop a concensus that you are right, and with that consensus you can go to your elected legislatures or other elected officials and get them to change the law.

When you here "political" issue, or "not a justiciable" issue, you know that the case is over.

Accordingly, I have been trying to determine what standard can be presented in an action to declare plea bargaining unconstitutional (possibly together with other features of the current criminal justice system), and have finally figured out that there is a standard and, almost as importantly, a way to measure the system against the standard.

Two United States Supreme Court cases dealing with "justiciable" controversies are: Baker v. Carr, 369 U.S. 186, 210 (1962); and Coleman v. Miller, 307 U.S. 433, 454-455 (1939).

I discuss this newly-conceived standard and how it was recognized in the next section.

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Looking at the Market for the Rights of Alleged Criminals in the Nation's Criminal Process

I like to create markets for things because of the adage "find a need and fill it". If you can find a market, you may be able to attract buyers and sellers and make the market work.

What market am I referring to?

The answer is: The market relating to investigation, accusation and determination of guilt or innocence of alleged criminals.

The major participants in such market are (i) district attorneys (state practice) and United States Attorneys (federal practice); (ii) the alleged criminals; (iii) the attorneys representing the alleged criminals; and (iv) the public.

My feeling is that by finding a "market" to exploit (in the best sense of the term), I can assist in bringing about change to an increasingly unworkable system which cannot change itself through legislative or executive action for a variety of complicated, or not-so-complicated reasons. I do readily admit that I cannot become a lobbiest in Washington, D.C. or in Albany with any possible hope to obtain enactment of legislation to change the current plea-bargaining system. There are just too many factors militating against political change at this time, including

The market I see is made up of judges who would like to reclaim their role as arbiters between prosecutors and defendants, instead of their increasingly distant role from deciding who is indicted (and therefore who goes to jail). At one time judges made a big difference in who went to jail and for how long, but at this time the prosecutor has far more say because of mandatory sentencing, plea bargaining, civil forfeiture statutes, and lack of supervision of prosecutors by any unbiased judge or governmental agency.

The result is that prosecutors get away with doing anything they want to do because judges are not required to be told what is going on until after an indictment is obtained, and even the plea bargaining takes place (generally) with intervention by the judge, so that a judge then is permitted to rubber-stamp a pre-agreed conviction package, which the judge generally then does, from what I gather. There undoubtedly are some differences from court to court, and from judge to judge, but it does seem that judges generally are less able to influence the outcome of a criminal case than they were 20 years ago.

A market can be created without anyones approval if judges (or some of them) would do what is being suggested in the next section.

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Judges Should Require 10% of Plea-Bargained Cases to Be Tried Anyway, with the Plea Being Undone If the Defendant Prevails at Trial

The justiciable standard I have in mind is the percentage of criminal defendants who plead guilty instead of trying their case. If 100% of the defendants pleaded guilty, it would seem pretty clear that there is some type of Star Chamber coercive activity (actually, extortion by the prosecutor, a form of unconstitutional torture) creating such unanimity in avoiding a trial. Is the trial something like requiring a person to hold his breath under water for 10 minutes, and if he survives he is then declared innocent? Or is it something easier to accomplish, such as having to raise $500,000 to pay for the legal services required to defend himself properly in the criminal matter.

In its brief article on "Star Chamber", at Encyclopedia: Star Chamber - full text states:

It was abolished by the Long Parliament in 1641. In its later period the court was so reviled that Star Chamber became a byword for unfair judicial proceedings. The court's harshness, however, has been exaggerated. [Ed. Note: The research materials referred to immediately below support the view that there was no exaggeration.]

If you are interested in reading further about the Court of Star Chamber, the author has put together some materials (in the form of relevant quotations) from the works of various Constitutional historians, including Sir Frederick Maitland, Sir David Lindsay Keir, and A. V. Dicey, which are available at Quotations from Star Chambers Research Materials

Incidentally, the prosecutor's office should be required by judges in any criminal prosecution (and I think this is so even without a showing of need by the defendant, which only raises more legal barriers and costs to overcome) to provide as much money to the defense as the prosecutor spends in time and money -- to make the contest equal.

The rate of guilty pleas in the Southern District of New York is 98%; in the Eastern District of New York the rate is 96.5%; in all federal courts the average is 95%; and in the County of Suffolk, New York, the rate is an estimated 92-95% or more as to the County Court (highest criminal court of original jurisdiction). Judge Neely in his dissenting opinion stated:

The same phenomenon occurs in state cases: in 1988, 91% of all felony convictions in the 75 most populous counties in the United States were obtained through guilty pleas. Id. at 526 tbl. 5.51." Robert E. Scott and William J. Stunts, Plea Bargaining as Contract, 101 Yale L. J. 1909, n.1 (1992).

I think this is the standard to look to, that when 90-99% of persons accused of major crimes find it necessary to plead guilty, there is something wrong with our cherished criminal system and Constitutional safeguards. It is probably difficult to blame this status on just one thing, such as the high cost of legal services; or the secrecy and discretion of the prosecutor (going after some with excessive zeal, and allowing others (who have more money and more power) to escape without any criminal proceedings); or the civil forfeiture statutes which are used to deprive alleged criminals of the money they had yesterday to defend themselves today; or of the mandatory sentencing laws which require that a person be sentenced to a large number of years in jail for a major crime charged against him which he did not commit (unless the person pleads guilty to some lesser charge such as failing to make out all required reports to some agency).

A court could (and should) say that when plea bargaining reaches a level in excess of 25% (for the sake of argument), it is excessive under the Constitution and requires remedial action.

Also, when the indictments call for sentencing under mandatory sentencing statutes of more than 2 times the amount of sentencing offered in plea-bargain agreements (and typically we see 5 or 6 times), the difference should be considered extortionate and Constitutional "torture", which are unlawfully compelling persons to plea guilty to whatever is being offered, in spite of guilt, especially as to the most serious crimes charged.

Here is the remedial action which also permits the court to measure the effectiveness of the remedy:

I propose that individual judges condition any plea bargains with an understanding that one out of 10 (or perhaps one out of 20) plea-bargained cases before that judge will be selected at random and required to go to trial before that judge, with the prosecutor being required to provide (or at least make available) as much money to the defendant as the prosecutor has spent in prosecuting the case.

If the defendant wins, his own plea bargain is tossed out, and he walks out of court a free man/woman. If he/she loses the trial, the plea bargain determines what time the defendant will serve.

Of course, there would have to be given enough time after the plea bargaining for the defendant to obtain the financial backing for his/her defense, and to prepare for trial, and there would have to be appropriate orders entered prohibiting use or reference to the plea. [Perhaps the trial should be limited to the most serious crime charged, as to which the defendant usually did not plead guilty.] Meanwhile, the prosecutor will also have to prepare for trial - and may the better case win!

In a locality where 98% of the criminal cases are not tried, this would mean that 10 criminal cases would be tried in addition to the 2% which are being tried anyway (100-98=2). Thus, the prosecutor would have to devote 6 times the effort in trying cases than is currently taking place, with the result (hopefully) that the prosecutor will have to select the best cases for prosecution and not every case because of the lack of time. Instead of the current system of indicting everyone (with charges beyond that which the prosecution knows are provable) and watching 98% capitulate, the prosecutor will have a growing trial caseload of bad cases (reflecting the prosecutors' selection of persons to indict).

What would make the prosecutor indict only the cases which are the "best" or strongest ones from a prosecutorial standpoint?

The answer is that if the prosecutor loses 50% of these random cases, we have now established, through this market for criminal justice, that 50% of the persons being prosecuted by the prosecutor are innocent under the Constitutional standards which we use to protect the innocent. In other words, if at trial a prosecutor cannot convict someone, then under the Constitution we say that the person is innocent (even if the person actually committed the crime; the safeguards are to ensure that innocent persons are not imprisoned, by insisting that all procedural safeguards be adhered to, even if some guilty persons escape punishment as a result).

As the next step, because of having a 50% loss ratio, the judge involved would ratchet up the percentage to require 15% or 20% of the prosecutor's plea bargained cases to be tried.

What appears to be an appropriate formula is to try a percentage of all plea-bargain cases equal to the percentage of the randomly-tried plea-bargain cases which are won by the defendants. If the prosecutor wins 95% of such cases, then only 5% of the plea-bargain cases would be tried, at random, to keep the prosecutors honest. If, on the other hand, the prosecutor wins only 20% of the cases, then 80% of the plea-bargain cases would be tried.

By requiring the prosecutors to try cases proportion to their failure to prevail during the random trials, the prosecutor will necessarily be required to devote more time to trials and less time to indictments and forfeitures, and enable this free-market justice system regulate the prosecutors when nothing else seems to work.

It might be observed, that the Star Chamber (which the Framers of the U.S. Constitution had in mind) had a plea-bargain rate of 100% (or so), and that the Eastern District of New York (96.5%) and the Southern District of New York (98%) are rapidly reaching that perfect goal.

The way of reducing these figures is to force the prosecutors to justify their plea-bargain convictions on a random basis, but ensuring that the defendants are adequately financed, and have sufficient time to prepare for trial.

Sooner or later, the prosecutor will stop prosecuting all but the most prosecutable cases, and the win ratio will go to a Constitutional level (the "standard") in order to have the judge reduce the percentage of plea-bargained cases (chosen at random) to be tried.

A community should spend only a certain percentage of the public's money for the criminal justice system, and the money should be devoted to prosecuting the worst criminals, not "all" criminals.

This "10% Rule" might enable the United States to return to a better criminal justice system without having to notify our Congresspersons who do not seem to notice what is going on, unless they get caught up in the criminal-justice system.

It should be noted that the New York courts in the past have used the expedient of forcing cases to trial to bring errant parties into line. During the late 1970's or early 1980's, as I recall, there was a special part in the New York Supreme Court which handled only the cases against one insurance company (whose name began with a "C", something like Combined, Consolidated, Commercial) with fast trials for all cases being the pressure used to have the insurance company start settling an appropriate percentage of cases as did all other insurance companies.

There seems to be no reason not to use mandatory trials to force prosecutors to prosecute properly, preserving the rights of accuseds in the process, by requiring more trials of plea-bargained criminal matters when the random trials show that the defendant is innocent of the charges in an excessively high percentage of the trials.

To conclude, here are some additional observations.

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The Nation's Prosecutors - The Modern Version of the Reviled Court of Star Chamber

The Court of Star Chamber, or Star Chamber, was an equity court for criminal justice in which the King and his/her advisors or Council had control of the court to such extent that the judges of the court did not have to follow any rules, and did whatever they wanted (or whatever the King or Council wanted).

The judges were particularly harsh against political enemies of the King, and in offenses against the state the judges frequently used torture, mutilation, excessive fines and long punishments against the defendants.

The Council and Star Chamber were predecessors to our administrative agencies.

The prosecutors of today are a reincarnation of the Star Chamber with the primary plea-inducing technique of extortion (the threat of a long period of incarceration) if the defendant does not plead guilty and accept a sentence of about 1/5th the number of years otherwise being faced by the defendant if he should lose at trial). By reason of this administrative resolution of 95-98% of all criminal matters in federal court today, the safeguards of defense counsel, judge and jury are no longer available and the modern version of the Star Chamber has taken over as the prevailing criminal court in the United States.

This power of the prosecutor was not intended, but resulted from the Sentencing Guidelines which were drafted by a group of experts after being authorized to do so by Congress, and neither the drafting group nor the Congress intended that the prosecutor would do what judges were being prohibited from doing, which is to give substantially different sentences to two persons convicted in different federal courts of the same offense.

The intention was that sentences would be uniform, except for variables spelled out in the Sentencing Guidelines. All this went out the window when prosecutors started making deals with criminal defendants which reduced the initial charge to something substantially less with the result that the defendant facing 30 years if he tried the case and lost could get a guaranteed 5 years (with some possible time off for good behavior or for informing on friends, relatives or associates, whether or not the information was true) through plea-bargaining.

Plea bargaining of this type has virtually eliminated criminal trials (now less than 2% of all criminal cases in the Southern District of New York), and has rendered defense counsel, the judge and a jury unable to act as a buffer between an overzealous prosecutor and the innocent defendant (or defendant innocent or a worst of the crimes charged).

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Provisions of the U.S. Constitution Being Infringed by the Nation's Plea-Bargaining Systems Article

There are many provisions of the U.S. Constitution (and comparable provisions in the various State Constitutions) being infringed by the nation's evolving plea-bargaining system. Plea-bargaining may have its uses, but not when the prosecutor winds up in the position of the judge, which is what has happened with a convergence of at least the following three events:

  1. Longer sentences for many crimes;
  2. Mandatory sentencing imposed on judges so that every sentence for a specific crime requires a sentence within a specified range, with almost no discretion on the part of the sentencing judge;
  3. No prohibition upon "over-charging" by prosecutors when they prepare an indictment or other accusatory instruments; the prosecutors routinely charge far more than then believe they would be able to prove at trial, for the extortionate purposes of requiring the defendant to defend against criminal charges which could put the defendant in prison for perhaps 50 to 60 years, even though the real crime in question (assuming there was one in the first place) should involve a threat of only 3 to 5 years, let us say; and
  4. No prohibition upon reaching an agreement between prosecutor and defendant to reduce the charges to wind up with a sentence of 1/10th to 1/3rd as much as the defendant is facing if he elects to try the case instead of accepting a plea through the extortionate plea-bargaining process; the judge is then required to sentence as if the crime involved was the lesser, plea-bargained charge, involving a lower sentence (and a substantially lower sentence than the defendant's co-actor in robbing a bank would receive if he was convicted at trial of robbing the bank).

The evils of plea bargaining are discussed elsewhere. The legal arguments for holding plea bargaining unconstitutional in its present form are, or seem to be:

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Criminal Defense Lawyers Are Leaving the Field - Claim They Are Unable to Represent Their Clients Properly Under This New [Star Chamber] System - 3/4/02 New York Magazine Article

New York Magazine on 3/4/02 published a cover-story article by xxxx Horowitz entitled "xxxx" which explained how prominent defense lawyers are leaving the field because they are no longer permitted to defend their clients, and are left with the role of negotiating guilty pleas, submitting memoranda on sentencing guidelines, and encouraging their clients to turn in other persons to be able to obtain a reduced sentence. Plea-bargaining, as it has developed, with a huge disparity between the offered sentence (to plead guilty, whether guilty or not) and the sentence which the judge is required to impose if the defendant tries his/her case and loses, has forced virtually all defendants except the foolhardy to plead guilty to whatever is offered, rather than to go to trial, especially where to properly prepare for and try a criminal case may cost $150,000 to $600,000, and the defendant (as with most people) has virtually no money, and the prosecutor will object to any kind of financing more than several thousand dollars.

The New York Magazine article states in relevant part:

[To be added; still under construction]

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Conclusion: Changes Needed in the Criminal Justice System to Offset the Plea Bargaining Process

Here are some changes which should be made, by the legislatures, by the courts, or by the executive branch:

  1. Require prosecutors to report to the court monthly on the amount of hours and out-of-pocket expenses being devoted to each criminal case, and make comparable funds available to the defendant in each case for his/her defense, irrespective of need of the defendant (to eliminate costly, time-consuming litigation as to entitlement to defense funds).
  2. Liberalize the rules of discovery, expecially as to expert discovery, so that a defendant in a criminal case has the same rights of expert discovery as a civil litigant has under the rules of civil procedure.
  3. Permit and encourage meritorious civil litigation, during the criminal proceeding, to enforce a defendant's civil rights against prosecutor and complainant, with the criminal case stayed (at the defendant's option) until the judge in the civil case has determined whether the civil case is meritorious or not.
  4. Eliminate civil forfeitures as to all criminal defendants except specified types (such as alleged terrorists and alleged drug traffickers).
  5. Permit 1 plea-bargaining defendant out of 10 to try his/her criminal case (with the defendant being released from his plea agreement if he prevails at trial), to enable statistics to be developed to show to what extent innocent persons are being forced to plead guilty. [As discussed immediately above, this can be the way to measure the standard for determining whether the plea bargaining process in any specific criminal justice system has reached a level of unconstitutionality.]

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Carl E. Person, Editor, LawMall,

Copyright 2002-2007 by Carl E. Person

Lawmall and RPAMall are servicemarks of Carl E. Person