Plea to end bargains

Chief Justice Daniel Wathen’s recent comments on plea bargaining will find varied, if not enthusiastic agreement among prosecutors. His observation that these pleas have become harmfully commonplace and need to be reduced would be helped, first, if judges give greater weight to recommended sentences in cases that do go to trial and, second, if the Legislature recognizes that the potential increase in the number of trials likely will require more resources.

The chief justice, speaking Tuesday at the Attorney General’s Conference on Domestic Violence and Sexual Abuse, outlined four ways to reduce the problem of family violence. Maine, he said, needs more special investigators, special prosecutors and advocates to become involved in these cases. The criminal justice system needs a better information network so one part of the system knows what another part is doing. Its courts need an active-management style to follow up on its remedies and make sure they are effective.

Lastly, Justice Wathen emphasized that the use of the plea bargain — usually the offer of a reduced penalty in exchange for a guilty plea — should be rethought in cases of serious violence. He did not say it should be eliminated: “Plea-bargaining has an appropriate function and I am not opposed to it in all forms. … There are situations indeed when half a loaf is better than no loaf at all, but they are few in number and should result only from a consensus process that includes the views of victims and families.”

Some prosecutors would respond Justice Wathen’s statements with the observation that they would not use plea bargains nearly so often if judges were stricter in their sentencing, but there is little incentive to go to trial with a case that could possibly yield a guilty person 25 years in prison but will more likely find a judge opting for 15. Why not just plea bargain for 11 or 12 years and save the emotional toll, time and risk of a trial?

The answer is that the punishment is often unsatisfactory to the victim and the victim’s family and friends, thereby eroding public trust in the court system. The chief justice is careful not to lay blame for this predicament, and there is no one spot among the three branches of government that is solely responsible for it. From difficult legislative funding demands to heavy caseloads for prosecutors to full dockets for the courts, the natural result is a heavy reliance on tools that move cases swiftly.

Justice Wathen urged prosecutors to refuse to bargain for a specified prison term in cases involving violence; and he asked judges to reject any bargained caps in these cases. These requests put more demands on everyone in the system. Attorney General Andrew Ketterer, who says he supports the change and will begin it immediately in his office, has only three full time homicide prosecutors for the entire state He asked for a fourth in the last legislative session but was turned down. Chances are he will need that fourth attorney more than ever now.

Justice Wathen is right to be concerned with the public’s perception of the opportunity in Maine to find justice. All three branches of government, however, have a lot of work to do before victims and their families will be satisfied with the outcome.