A legal blog on Lynndie England

Just come across a splendid liberal/legal blog by a team led by Professor Jack M. Balkin, who holds the magnificent titles of Knight Professor of Constitutional Law and the First Amendment, Director, The Information Society Project at Yale Law School.   It includes an interesting piece by Professor Balkin on the value of blogs to academics, including of course lawyers.


< Lynndie England in Abu Ghraib 

Also in this treasure trove is a disturbing piece by Scott Horton about the sad case of Lynndie England, recently jailed for three years for her part in the torture of prisoners at Abu Ghraib, all part of the great cover-up of the far more senior people who either deliberately or negligently presided over these scandalous practices and are apparently going to get away with it while pathetic bit players like Ms England, with her new baby fathered by Charles Graner, another of the Abu Ghraib staff who had led her on, serve out their terms in the penitentiary.  Of course she deserved punishment, but she looks to me almost as much a victim as a culprit.  (Graner got ten years.)  One passage in Horton’s piece highlights the anomalies and potential benefits that can flow from the well developed American practice of plea bargaining:

The plea bargain process is essential to the economics of our criminal justice system. However, it frequently isn’t consistent with justice. Anyone familiar with the plea bargain process knows that plea bargain statements are a form of kabuki theater – in essence, what the prosecutor gets as a gift in exchange for a reduced sentence. Accordingly, the plea bargain statements [in the Lynndie England case] that Pollack [Wall Street Journal editorial writer] quotes tell us one thing: that the prosecutors were focused with a laser-like intensity on throwing inquiry off the trail of command authority. It does not provide any kind of evidence that the command authority is innocent. Given the relationship between command authority and the prosecutorial service, it might suggest just the opposite. Citing such statements as proof of what is said borders on being comical.

That’s particularly true in England’s case. Her plea bargain was busted because Graner testified that the photos had been taken in order to train others in techniques for preparing prisoners (directly contradicting Pollack’s characterization, incidentally). This was inconsistent with the plea bargain statement, and thus forced the court to throw the plea bargain out.

There’s talk of introducing more formalised plea bargaining into English courts (and Welsh ones too, for all I know) as a means of saving the cost of lengthy trials.  Plea bargaining, if it had been successful, could have resulted in a more merciful outcome for Ms England, but it has other perils, putting heavy pressure on the innocent to plead guilty in order to avoid the danger of a heavier sentence, and tempting prosecutors to over-charge so as to leave room for scaling down the charges in the course of plea-bargaining (Louise Woodward had a bad experience with Massachusetts law through unexpectedly declining to plea-bargain after being monstrously over-charged).  We should beware.