I grew up in rural Arizona. My dad and his brother ran a farm at about 500 acres, which I worked on in my youth. My dad’s dad (Grandpa Olsen) ran a small cattle ranch, which I also helped out on in my youth. In addition, his dad (Great-Grandpa Olsen) ran a freighter between two smaller Arizona towns. My father had detailed historical knowledge of Arizona and probably could have given many historians a run for their money. Needless to say, I was steeped in the Old West. I practiced fast draw, handloaded my ammunition, read Louis L’Amour daily, watched documentaries on various Old West characters, watched westerns all the time, and so forth.
One day, as I got older, I realized that everything I thought I knew about the American West was fictional. What I “knew” about the Old West were the creative ideas of screenwriters and fiction writers. Most of my “knowledge” wasn’t historically accurate. For those who are now wondering about their Old West knowledge, please read Thomas J. DiLorenzo’s article in the Fall 2010 issue of the Independent Review. It is a bit disconcerting.
I never really got over that blow when I realized that my “knowledge,” hobbies, and viewpoints were fiction. It negatively impacts many things that I would otherwise enjoy. I worry that I’ll be a victim of confusing fiction with genuine knowledge once again. While knowledge about the Old West may be inconsequential, consider something similar:
What if you were innocent of a crime but were being tried based on DNA evidence? Who would you want to serve on the jury? Someone who has never missed an episode of CSI or had basic valid scientific knowledge of DNA evidence and how it could be used and misused for criminal investigations?
Likely, you would get someone either unfamiliar with DNA evidence or someone who had never missed an episode of CSI, NCIS, and so forth. Sadly, what is presented in those shows is quite, well, fictional. You would probably want to recommend the jury read the book Inside the Cell: The Dark Side of Forensic DNA, by Erin E Murphy, for an excellent place to start on learning about forensic DNA evidence and counteracting some of the jury’s fictional “knowledge.”
From a self-defense point of view, the series Law & Order, and more recently Bull, probably has left an impression on many Americans about their justice system. But, sadly, it too is about entertainment and doesn’t reflect real life. Here is why:
“While there are no exact estimates of the proportion of cases that are resolved through plea bargaining, scholars estimate that about 90 to 95 percent of both federal and state court cases are resolved through this process (Bureau of Justice Statistics, 2005; Flanagan and Maguire, 1990).”
Could you imagine watching a television series about jury trials where 90-95% of the episodes ended in immediate plea bargains? It probably wouldn’t fit under the “Entertainment” category, but perhaps under the “Help for the Insomniac” category. But, unfortunately, that was the shot, and here is the chaser:
“Overall, the majority of evidence illustrates that those who accept a plea are likely to receive a lighter sentence compared with those who opt for a trial. This disparity exists because prosecutors are granted wide discretion when reducing charges. These findings are problematic because they demonstrate that if a defendant opts to invoke the Sixth Amendment right to a trial by jury, he or she will likely have a more unfavorable outcome.” (ibid).
Prosecutors have broad discretion in reducing charges. This discretion allows them to punish people that they don’t favor (no plea bargain, substantial charges) and reward people they prefer (with significantly reduced charges and a plea deal). For example, imagine a prosecutor who believed that people did not have the right to kill in self-defense. Also, imagine that the same prosecutor had a significant amount of sympathy for those who commit violent crimes. It is clear how justice could be compromised just by one person in a position of power through pressure and plea bargains. Worse, these same prosecutors could be influenced to engage in this behavior by other groups or prominent individuals. For example, listen to the Human Events podcast discussing the events that led to the suicide of Jake Gardner.
Plea bargains and broad discretion on charges for prosecutors may undermine justice, but don’t forget that “tough on crime” legislation, such as mandatory prison sentences, also drives plea bargains. In Arizona, a negligent firearm discharge in a municipality is a class 6 felony and carries a mandatory prison sentence. There would be considerable risk in a concealed carrier having a negligent discharge and asking for a jury trial. If the jury finds the concealed carrier guilty, they will go to prison. There is nothing the judge can do to stop it, no matter the circumstances. While the argument can be made that criminal law is much more efficient due to plea bargains, we should not forget that trial by jury is an essential protection of our freedom. Our Founders certainly thought so.