Plea Bargaining, a Fairy Tale (Or how to destroy both honest law enforcement and political adversaries)


Nineteen years ago while assisting a former wife (I’ve only have two) in a campaign as a Libertarian Party candidate for the Florida State Senate (I was then a member of its Executive Committee but since then have become an active democratic socialist progressive), I proposed the following plank, now more relevant than ever given the antidemocratic politization of the criminal justice system:

….  Currently, the administration of justice is based on plea bargaining, a system which punishes the innocent and rewards the guilty but is defended because of the claim that without it, the system could not work.  The system does not work.  Incarceration of the innocent and early release of the guilty cannot be acceptable for the sake of administrative convenience.  The criminal code must be streamlined to make it efficient and plea bargaining must be outlawed. ….

The problem has become almost infinitely worse since then as illustrated by the plea bargain decision entered into yesterday in the Southern District of New York in United States versus Michael Cohen.  In that case, federal prosecutors secured politically damaging admissions by massively reducing sentences for real crimes involving tax and bank fraud that …., well, … had nothing to do with the political admissions. In essence, blackmail, rather than being treated as a crime has been elevated to an acceptable political tactic where the victim and the victim’s political allies and followers are punished, rather than the perpetrator.

The result is that without necessity for any proof at all, or any trial, a public perception damaging to a political party in the midst of a political campaign is created gratuitously.  Something most if not all honest and intelligent people in the full use of their reason would see as “election meddling”, the very thing the opposition to the current president of the United States (who I do not support politically, I proudly voted for Jill Stein in 2016), is purportedly trying to prove occurred during the 2016 election; trying to prove through allegations that the Russian Federation was formally behind the release of information (accurate information to be sure) that purportedly “stole” the election from the favorite of the bipartisan political establishment.  The beauty of the tactic from the perspective of the obviously biased prosecutors and their political and media allies is that Mr. Trump had no place at the table, no ability to participate, to object, to provide evidence.  Thus, Mr. Trump and Republican candidates in the upcoming legislative elections who support him are dealt a potentially fatal blow without any messy access to due process.  I and other democratic socialist oppose many if not most of Mr. Trump’s policies but most of us I think prefer to defeat the policies honestly without destroying our justice and political system in the service of petty revenge for an unexpected electoral defeat.

The plea bargaining system is and always has been putrid but never more putrid than when abused to subvert democracy, purportedly in the name of defending it; pure unadulterated hypocrisy but hypocrisy is now a primary tool of the faux liberals in the Clinton dominated Democratic Party (and of their “mainstream media” supporters).  Imagine if the defense had monetarily quantified sixty years in prison and offered it to Mr. Cohen in exchange for his favorable testimony.  That would have been a huge scandal, justifiably so.  And that is exactly what prosecutors do every day.  It is bad enough when it is done involving only the defendant but when it is done in a manner smearing nonparties it is clear that justice is not only blind, but impotent as well, and utterly corrupt.  That the entire concept of justice in the criminal justice system is a perverted parody is now clearer than ever.

The conviction on the same day of former Trump campaign chairman Paul Manafort on five counts of tax fraud, one count of hiding foreign bank accounts and two counts of bank fraud by a prosecutor whose only jurisdiction involves that created by the recusal of attorney general Jefferson Beauregard Sessions III in conjunction of allegations of illegal Russian – Trump campaign collusion during the 2016 presidential campaign is also a perverted parody of justice, an attempt to create a means of bribing – coercing a potential witness into testifying in a manner that rather than promote democracy, subverts it, subverts it  through the related tried and true prosecutorial tactic of overcharging, i.e., charging offenses with potential sentences massively in excess of the norm for similar conduct.  That also occurs all the time and in every prosecutorial context in the United States.

Danielle Ryan, an Irish freelance writer, wrote a relevant article on point, “Proof that Manafort & Cohen are criminals adds no weight to Mueller’s Russia collusion probe”, an article of course nowhere to be found on the “mainstream media” but rather published on pro-Russian media site RT.  Mark Penn[1] also wrote an important article on point, this one published in The Hill (“Cohen’s plea deal is prosecutor’s attempt to set up Trump”).  They both bear consideration with respect to the resulting convictions and the purported subject matter of the Robert Mueller “investigation”, although they do not touch the premise of this article, that plea bargaining is the bane of any honest system of criminal justice rather than its pragmatic savior.

As libertarian science fiction author L. Neil Smith notes in many of his novels, the “criminal-justice” system in the United States is an oxymoron that deserves its name.  The plea bargaining system has not only destroyed any semblance of a relationship between justice and legality but is now serving to sever democracy from its roots, or at least its apparent roots.  Perhaps it is now serving some function in showing that all we have is a thinly disguised oligarchy, rewarding its minions with impunity (think Clintons) while destroying its adversaries, although not a purpose likely to lead to anything other than showing us our place and the consequences of seeking to “buck the system”.

© Guillermo Calvo Mahé; Manizales, 2018; all rights reserved. Please feel free to share with appropriate attribution.

Guillermo Calvo Mahé (a sometime poet) is a writer, political commentator and academic currently residing in the Republic of Colombia although he has primarily lived in the United States of America (of which he is a citizen). Until recently he chaired the political science, government and international relations programs at the Universidad Autónoma de Manizales. He has academic degrees in political science (the Citadel), law (St. John’s University), international legal studies (New York University) and translation studies (the University of Florida’s Center for Latin American Studies). He can be contacted at and much of his writing is available through his blog at

[1] Mark Penn is a managing partner of the Stagwell Group, a private equity firm specializing in marketing services companies, as well as chairman of the Harris Poll and author of “Microtrends Squared.” He served as pollster and adviser to President Clinton from 1995 to 2000, including during Clinton’s impeachment.

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