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Thread: Constitutional Reference of Mercy ?

  1. #1 Constitutional Reference of Mercy ? 
    Forum Junior ArezList's Avatar
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    As the last post of mine asking about pardons.

    We also got others like plea bargain, etc in exchange of a "lesser" sentence.

    But why?

    what are we trying to imply, a merciful government, which weights out the contribution of a criminal?

    Is it written into the constitution, or any reference available ?

    (PS: you remember in "Shawshank Redemption" they will review your case every 10 years like an interview, and approve to release according prisoners behavior? What is the term?)


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  3. #2  
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    Arez; Plea bargains are a process of law and can vary from State to State or Legal Jurisdiction if the Federal Courts are involved. I suppose, you can imply something in Article III, US Constitution might apply, but short of Habius Corpus (right to due process) or Due Process in the 5th A, there is no mention of leniency for cooperation, where plea bargain are generally applied.


    US Constitution;
    http://www.usconstitution.net/const.html



    Generally, due process guarantees the following (this list is not exhaustive):

    Right to a fair and public trial conducted in a competent manner

    Right to be present at the trial

    Right to an impartial jury

    Right to be heard in one's own defense

    Laws must be written so that a reasonable person can understand what is criminal behavior

    Taxes may only be taken for public purposes

    Property may be taken by the government only for public purposes

    Owners of taken property must be fairly compensated
    http://www.usconstitution.net/consttop_duep.html

    "But why"; Generally if the prosecution feels their case is too weak, but feel the person is guilty, or information the defendant has is of vital interest*, they will offer a lessor crime to guarantee that conviction or obtain that information. In many jurisdictions, the Judge can refuse that agreement at the arraignment, ordering a trial, but this is extremely rare, except maybe on TV.

    *In some cases an informant on some major case will not only not be charged with anything, but protected from other legal action and those he/she is informing on. The "Witness Protection Program" has some rather interesting cases documented, if you care to google.

    On your PS; Pardon review, is somewhat complicated by jurisdiction, but 10 years between those reviews after the initial minimum time has been served is almost unheard of. I think the current 'time served' for parole in the US for Murder/Manslaughter is about 12 years, and that's UP from 8 years, just few years back 2005 or so.

    No I don't think the Founders in 1786 (current Constitution) were concerned with a 'Merciful Federal Government', quite the contrary but another topic.

    The term; "Good Behavior"...


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  4. #3  
    Forum Junior ArezList's Avatar
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    Thanks for the gold information.

    One more thing to scratch :

    Generally if the prosecution feels their case is too weak, but feel the person is guilty, or information the defendant has is of vital interest
    So, what the agreement, reached between the defendant and the prosecutor base on?

    Under the premiss

    1) the suspects confess their own perpetration ?
    or
    2) they confess other suspects"
    or
    3)lack of confidence to win the case?
    or
    4)the subjective of prosecutor with the no fixed criteria at all?

    I found nowhere to define exactly when the prosecutor is abusing his/her power.

    Then, I look up what is the def. of justice, in case it's very unfair to the victims.

    But it seems they don't consider them too much, for letting them appeal themelves if they are bending over backwards??
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    American justice often has more to do with Game Theory and less to do with society actually learning the truth. Prosecutors seek to maximize the minimum punishment (ie, seek the “maximin”); defendants seek to minimize the maximum punishment (ie, seek the “minimax”). Where these two overlap, a plea bargain can be reached. This is as simple as it gets.

    Plea bargains occur when both sides agree on degree of guilt/punishment, with each side having its own reasons for agreeing (see the Derschowitz quote below); however, plea bargains are secretive and not fair to the victims or to society due to the lack of a trial which would have revealed and adjudicated the facts.

    Prosecutors and judges generally consider a public admission of guilt as a step in one’s rehabilitation, so they tend to show leniency, which entices the defendant to plea guilty. Close to 90% of homicide cases in America end in plea bargains, which means that the truth is never known, no new case law ever results from such cases, and Justice never advances. Plea bargains are like riding a fast train to an unknown destination — you get there fast, but you don’t know where it’s going.

    Some defendants plea to a charge less than first-degree murder to avoid life without parole; some defendants plea to life without parole to avoid the death penalty.

    In some cases, plea bargains result in the less guilty being punished more and the more guilty being punished less; and the prosecutor, although suspecting the truth, might agree to the plea bargain to gain two quick convictions (and the affiliated fame) and to close the case.

    Attorney Alan Derschowitz:
    All sides in a trial want to hide at least some of the truth. The defendant wants to hide the truth because he’s generally guilty. The defense attorney’s job is to make sure the jury does not arrive at that truth. The prosecution is perfectly happy to have the truth of guilt come out, but it, too, has a truth to hide; it wants to make sure the process by which evidence was obtained is not truthfully presented because, as often as not, that process will raise questions.
    Grief is the price we pay for love. (CM Parkes) Our postillion has been struck by lightning. (Unknown) War is always the choice of the chosen who will not have to fight. (Bono) The years tell much what the days never knew. (RW Emerson) Reality is not always probable, or likely. (JL Borges)
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  6. #5  
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    So, what the agreement, reached between the defendant and the prosecutor base on?

    Under the premiss
    Arez;
    1) the suspects confess their own perpetration ?

    If the defense and prosecution, agree on both a 'charge' and 'penalty', the plea is then established. If they can't agree on one or the other, usually charge (Capital One or premeditated, opposed to Self defense or unplanned emotional stress), the defendant will be arraigned and go to trial. There are all kinds of defenses allowed a defendant, especially major felony and always keep in mind, under American Law (not always true elsewhere) the defendant is presumed innocent, until he/she either confesses or is found guilty. Any verdict or even agreement (in some cases) can be appealed, but at this point it becomes the convicted persons responsibility to prove innocence.

    2) they confess other suspects"

    Think you mean if one or more turn on another suspect; Usually the police or investigating authority has a good idea, when say four people are know (caught) to be at a murder site, robbery site, when filing their reports. It's generally up to the District Attorneys Office to determine or the police through interrogation to get the fact straight, but if this fails, they will try to coheres the individuals into turning on the actual guilty party (planner/Trigger person), the other or others then being conspirators to the act.

    3)lack of confidence to win the case?

    It's normally evidence, since confidence is not an acceptably reason to accuse a person. However if an accused is suspected of murder or has knowledge (was there), but mitigating circumstance show up (forensics don't implicate) they can offer a lessor charge to gain access to that knowledge. So, what the agreement, reached between the defendant and the prosecutor base on?


    4)the subjective of prosecutor with the no fixed criteria at all?
    If, I'm reading this correctly, NO never and those doing the inve
    stigation and/or the prosecution are never the same people. To top this off and the basis of American law, the attorneys involved REGARDLESS of their opinions are to use only law/system/evidence and their experience to either protect the accused (defend) or prove (beyond a REASONABLE doubt) the accused persons quilt.

    Then, I look up what is the def. of justice, in case it's very unfair to the victims.

    But it seems they don't consider them too much, for letting them appeal themselves if they are bending over backwards??
    I have a hard time explaining justice (The quality of being just or fair), since it has nothing to do with guilt or innocence, simply the fairness of the process. If anything under American law, once a person is accused, fairness swings to that person. Think I've covered this.


    jrmonroe; I'm not sure about the 'Game Theory', other than once charged to prosecute or defend, they are obligated to do so to the best of their ability, but the rest of your post is on target, in my opinion.
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  7. #6  
    Time Lord
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    Quote Originally Posted by ArezList
    Thanks for the gold information.

    One more thing to scratch :

    Generally if the prosecution feels their case is too weak, but feel the person is guilty, or information the defendant has is of vital interest
    So, what the agreement, reached between the defendant and the prosecutor base on?

    Under the premiss

    1) the suspects confess their own perpetration ?
    or
    2) they confess other suspects"
    #2 has done wonders for our ability to break up organized crime. The insane penalties that were placed on drug crimes put a lot of low level mafia thugs in a position where they had to choose between ratting out their buddies or spending 50+ years in jail.

    The trick only works if the DA has the power to grant clemency, of course.


    or
    3)lack of confidence to win the case?
    or
    4)the subjective of prosecutor with the no fixed criteria at all?

    I found nowhere to define exactly when the prosecutor is abusing his/her power.
    Selective prosecution would exist either way. A prosecutor is always free to drop the charges against you if they don't think they can win. The DA office only has so much money to spend on trials, so they usually won't bother to try and prosecute a crime at all if they don't have strong evidence.
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