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The News Journal
Delaware Voice column by Victor F. Battaglia and Ned Carpenter
February 26, 2007

A surrender of innocence amid mandatory minimum fears

Any schoolchild can recite the guarantees of the Bill of Rights, almost all of which are embodied in our own Delaware Constitution adopted in 1897.

We take great comfort and pride in the fact that we are guaranteed the right to trial by a jury of our peers; we take comfort in the fact we have the right to be secure from unreasonable searches and seizures in our homes, persons and our things (the homes that are our castles).

We take comfort in the fact we are governed by the right to due process of law; the right not to be compelled to be a witness against ourselves; and the right to be represented by counsel.

Over the years, there has been a gradual and subtle incursion into each of those rights.

By the process we label "plea bargaining" a defendant can be encouraged (or required) to give up some or all of these fundamental rights which Thomas Jefferson, and others of our forefathers, regarded as the "bulwark" of our democracy. These are the things that protect the individual from his government.

The plea-bargaining process has not been all bad.

It allows for resolution of a large number of cases by negotiation. A negotiation process puts bargaining power on both sides of the table.

The individual gives up any number of rights in exchange for the commitment of the prosecutor to reasonably reduce a charge, dismiss portions of charges for which there is no reasonable proof, or to earn a favorable sentencing recommendation.

It has been estimated that about 92 percent of all criminal cases are resolved by plea bargaining and without trial.

The success of the plea-bargaining process is premised upon the advocacy under which our system of justice operates.

It is thought if there is a weakness in the prosecution's case, the prosecutor will be willing to negotiate a favorable plea to avoid the risk of a jury verdict in favor of the person charged.

On the other hand, the person charged may be willing to give up the belief in his or her innocence, and the rights that the Constitution guarantees.

The defendant can avoid even the remote possibility of being found guilty of a serious crime which he did not commit, or which he believes he did not commit, if he is willing to plead guilty to some lesser offense of which he may or may not be guilty.

The safety valve in the plea-bargaining process has always been the presence of an independent third party -- the judge.

Traditionally, even in the face of an agreement between the parties, a judge could consider the entire situation, the past good or poor conduct of the person charged, and the likelihood or unlikelihood that the offense even occurred as charged.

The judge could administer a sentence determined to be fair by the independent and respected scholar standing between the parties.

The plea-bargain system has always upset some scholars because of the fear that it erodes too many of the protections of an individual.

Most scholars are willing to accept the concept because of the practical necessity.

Simply stated, we do not have enough judges, prosecutors, jurors, police, defense lawyers or other essential personnel to take to trial all of the cases that would have to be tried without the plea-bargaining process.

But the concept should not be without reasonable limitations. There must be some effort to balance the power of the state against the individual's loss of Constitutional guarantees.

We should not tolerate an attempt to pass a law that allows a prosecutor to charge an individual with an offense that would require a lengthy mandatory jail sentence without consideration of a judge, unless the defendant pleads guilty to a lesser, non-mandatory offense which the prosecutor actually believes he committed.

But without express permission by the General Assembly the government has positioned itself to require individuals to give up their right to trial by jury, the right against self-incrimination, the right to be secure from unreasonable searches and seizures and the right of a defendant to have his or her fate decided first by a judge, then by a jury.

By enacting a whole series of drug-related offenses that require mandatory sentences but hardly ever go to trial, the government has positioned itself to require the surrender of these Constitutional protections of the persons charged.

The device is a simple one.

In Delaware, the prosecutor can either charge or threaten to charge an individual with a mandatory-sentence offense that would require the judge to impose an unjust sentence.

This compels the hapless defendant to yield to the threat of a mandatory jail sentence by pleading guilty to an offense that does not require prison time or requires much less prison time.

The defendant achieves some measure of security and avoids the threatened long mandatory sentence only by surrendering his or her Constitutional rights -- giving up the right to trial by a jury of peers; the right not to be a witness against himself and the right to prove he did not commit even the relatively minor offense to which he was compelled to plead guilty,

This is the equivalent of a doctor advising a patient that he will avoid a 50 percent, 40 percent or 10 percent chance of dying from cancer if he has a minor surgical procedure.

We have nationally acclaimed courts in Delaware. We have every right to be proud of our judges, who are skilled, industrious and fair.

By the same token, we have a professional prosecuting staff that is capable of trying cases, negotiating plea bargains, and fulfilling all of the obligations of the administration of justice without the use of the artificial prop of statutes requiring mandatory jail sentences.

We can blunt this incursion into Constitutional rights and protect our citizens without adversely affecting the enforcement of criminal statutes by repealing those statutes that require mandatory jail time for drug-related offenses.

Those statutes are too often used to compel a defendant to give up his belief in innocence, and all of his Constitutional rights in order to avoid the threat of mandatory jail time.

Our judges are fully capable of imposing jail time when it is required.

They are also fully capable of filling the role of the independent arbiter without fear or favor from either side.