Unconstitutional Sentences

Mike's recent Crime and Federalism post, mentioned below, about trial taxes also opines that plea bargaining is unconstitutional. This reminded me of a sentencing practice I used to encounter from time to time in a particular county. Specifically, the defendants were told at the time of the plea hearing that if they paid restitution in full at sentencing, they would get a lesser sentence than if they did not. I asked some lawyers in that county about the practice, and they indicated that they knew they had a valid constitutional objection, but that the trial court judges had already rejected the constitutional argument, and that their clients somehow always managed to come up with the money so they never had the opportunity to appeal the issue. Eventually, though, a defendant was unable to pay, and the Court of Appeals held that a defendant's ability to pay must be considered when offering a reduction of a sentence of incarceration in return for up-front payment of restitution.

If you'll excuse the shift in topics.... As much as people complain about the civil justice system, some of the worst systemic defects are found within the criminal justice system. But as a society we largely let them pass below the radar, because they largely work to the disadvantage of the defendant. The wrongly convicted are viewed as exceptional, or as "probably guilty of something else, anyway". Constitutional rights are derided as "loopholes". And, with poor defense funding and often overworked public defenders or underqualified appointed attorneys, "junk science" often rules the day - in favor of the prosecution. (Prosecutors complain of a so-called "CSI Effect", but some of their brethren have contributed to the problem through presentation of junk and overstated science testimony about hair and fiber evidence, bite marks, gunshot residue, footprints, "shaken baby syndrome"....)