One of my pet-hates is the plea-bargain. So here is a stylised example: person A may or may not be in breach of some law. Government regulator approaches A and indicates they will prosecute for a breach. Eventually A and regulator settle with A either pleading guilty to a lesser charge or simply paying a fine and not admitting any guilt.
In a vulgar economic rationalist sort of way this makes a lot of sense. So legal enforcement resources are scarce and this ensures that people who have committed offence X are “punished” or “deterred” or “brought to justice” etc. etc. etc. So the expected value of the probability of success net of costs and benefits is the calculation to be performed and a decision made. Okay I understand all that.
The issue to my mind is that plea-bargaining is inherently corrupt. It becomes an invitation for state-sponsored harassment. It is ultimately a legally sanctioned shake-down mechanism. Part of the problem is that it is non-transparent. Justice is not seen to be done. Person A is accused of offence X but punished for offence Y or even turns out to have committed no offence at all, but still pays a fine. Mind you, it does create “work” for regulators and lawyers and journalists; it is probably better than burying bank notes in old disused mine shafts but I’m not entirely convinced.
The Al Capone example doesn’t apply here – he was actually evading taxes as well as being a mobster, so his conviction wasn’t a plea-bargain.
Okay – so where am I leading with this? Well pseudo-judicial processes have become infected with this strange idea too. Last year the AFL fined the Melbourne football club and suspended some of its staff after they were accused of “tanking”. Actually nobody was tanking but people still got punished. Perhaps as if they had been tanking. Anyway, as I said, non-transparent process at work.
This year the Essendon football club was accused of … well something. Bringing the game into disrepute, or something. Nobody can be sure. The only person who had gumption enough to carry through with their threat of going to court ended up having done nothing at all, and was completely exonerated of doing whatever it is everyone else didn’t do either.
The problem is that when you engage in this sort of thing you can’t always remember what it is everyone wasn’t accused of not doing. So spare a thought for “poor” Andrew Demetriou:
Mr Demetriou told host Mike Sheahan: “James Hird’s charges were never dropped, Mike, they were reduced. He was charged with four offences, and he contributed to Essendon breaching the rule, bringing the game into disrepute. The sort of thing that was peddled by his lawyers, I think’s done a great disservice, to say that charges were dropped, because it’s not true, not true.”
Well that isn’t what James Hird understands to be the case:
SUSPENDED Essendon coach James Hird is considering legal action against the AFL after its chief executive, Andrew Demetriou, claimed that Hird had pleaded guilty to a reduced charge in the Essendon supplements saga.
Hird’s lawyer, Steven Amendola, yesterday denied his client had pleaded guilty to any charge over Essendon’s controversial supplements program, saying the AFL had withdrawn all charges against Hird under the deeds of settlement that he and the club signed with the AFL.
Mr Amendola said Hird had been charged under the AFL’s code of conduct, rule 1.6, for bringing the game into disrepute.
“Once the deed was signed, there was no charge – that had been withdrawn,” Mr Amendola said.
Having been denied a court case several weeks ago, hopefully we’ll get one now. For non-transparent reasons the AFL imposed penalties on a number of individuals and there is now a dispute as to what the agreement was between those individuals.