Truth, Lies and The Paradox of Plea Bargaining

Abstract

This Article describes the regular use of lying during plea bargaining by criminal justice stakeholders, and the paradox it presents for those who care about creating a fairer criminal legal system. The paradox is this: lying at plea bargaining allows defendants the opportunity to negotiate fair resolutions to their cases in the face of a deeply unfair system, even as that lying makes way for — and sustains — the problematic system it seeks to avoid. The Article lays out a taxonomy of lying at plea bargaining, organizing the types of lies into three categories: lies about facts, lies about law and lies about process. The criminal justice system produces a litany of injustices. Implicitly authorized, systemic lying offers a means of dealing with these perceived injustices. But lying also obscures the system from public view, hiding and relieving pressure points via plea bargaining. Unfortunately, what seems like the natural solution — to make the system more transparent and accountable — would likely harm individual defendants. If lying at plea bargaining disappeared tomorrow, many defendants would suffer dire consequences, such as deportation for minor charges or being subjected to outrageous mandatory minimum sentences. These defendants would lose their ability to avoid the injustices of the system. And yet, lying at plea bargaining is the result of a series of interlocking, mandatory laws and rules that many stakeholders believe are deeply unfair and should be reformed. Thus, lying at plea bargaining is both a means of avoiding injustice and a force prohibiting meaningful reformation of the laws and rules that produce such injustice. To put it another way, the lies in the taxonomy are workarounds for a system so barbaric that lawyers are willing to lie to help defendants avoid the worst of it, but they also make that same system nearly impossible to reform. Examining this paradox leads to the conclusion that conversations about reform must focus on total overhaul of the system, not piecemeal correction. Something closer to abolition than alteration is the appropriate response to a system so entangled that lying is the only way to reach a just resolution.