Plea bargains are not part of the Constitution / by kevin murray

The Constitution is the supreme law of this country, and anything that circumvents that Constitution is anathema to the citizens of this fine country.  The problem with the justice system doing something that is wrong, or is a shortcut, or is a convenience, or is a power play by prosecutorial agents, is that if it is not stopped, it has a strong tendency to morph into something that thereby becomes unstoppable, and further to the point, becomes something that clearly supersedes Constitution law. 


Plea bargains are a bastardization of anything even approaching justice, of which, the whole point of an open court, and each side being represented by their own attorney, as well as being judged by their peers, is to create the very foundational basis of justice.  Plea bargains are essentially between someone that wields incredible power and is a professional in their industry; that is, the prosecutor as well as their agents, against often individuals that either have no representation, or a shadow of any real representation.  The prosecutorial agent exerts considerable pressure for a deal, under the threat, that the power of the state, will crush that individual in court, by utilizing the full power of the law as a cudgel, necessitating that a prudent person will see that a deal  need be brokered, of which, not a whit of this approaches a fair and open process, on either side, with absolutely nothing presented to an impartial jury of one’s peers, or the case, on its merits actually being examined, questioned, and debated.


Further to the unfairness, is the fact that a significant amount of plea bargains are done by individuals that have not been able to post bail, and hence, are already incarcerated in which, because their case appears to be in some sort of limbo, or like something out of Kafka’s “The Trial”, are in no position, to do much of anything, but make a plea, so as to at least know exactly what they are facing and to thereby close a deal.


Those that wrote the Constitution, debated upon the Constitution, put forth the Ten Amendments to that Constitution, and ratified the Constitution, believed that by doing so, that this Constitution was good law.  This thus means that plea bargains, which are an abomination to the Constitution and the principles of which that Constitution stands, needs to be either seriously amended or simply struck down as unconstitutional.


The chances of any Supreme Court having the courage to actually strike down plea bargaining, are virtually non-existent, however, the Supreme Court, when evaluating plea bargains in regards to Constitutional rights that all are entitled to, could, should it desire to do so, amend the rules of plea bargaining, so that, the absolute power of prosecutorial authorities would be terminated, and replaced thereby by empowering an impartial jury to hear both sides of a potential plea bargain, and then to have that jury be the ultimate arbiter of what deal could be constructed that would be fair, through a unanimous vote of that jury,  of which, all of this, would be done in an open court of law, rather than behind closed doors.


No doubt, even this fundamental re-structuring of a plea bargain, would be subject to abuse, but at least, making all plea bargains public and allowing the jury to be the conscience of the community would be a very welcomed and justified change.