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Advanced Level January Brief
Resolved: In the United States, plea bargaining undermines the criminal justice system.
Table of Contents
Table of Contents
Table of Contents ........................................................................................................................................ 2 Using Our Brief........................................................................................................................................... 4 Topic Analysis ............................................................................................................................................ 5 General Information .................................................................................................................................... 6 Definitions................................................................................................................................................... 7 Plea Bargaining.................................................................................................................................... 7 Undermines .......................................................................................................................................... 7 Criminal Justice System ...................................................................................................................... 7 Pro Evidence ............................................................................................................................................... 8 General .................................................................................................................................................... 9 Denial of Due Process ........................................................................................................................... 12 Plea Bargaining Punishes People for Going to Trial............................................................................. 13 Plea Bargaining Forces People to give up their Rights ......................................................................... 14 Plea Bargaining Violates Equal Protection ........................................................................................... 17 Plea Bargaining Avoids the Safeguards Present to a Trial.................................................................... 19 Plea Bargaining Conceals the Truth ...................................................................................................... 20 Value of Publicity is Lost ...................................................................................................................... 22 Damaging to Innocents.......................................................................................................................... 23 Creates False Testimony ....................................................................................................................... 25 Plea Bargaining Creates Wrongful Convictions ................................................................................... 26 Wrongful Convictions do Occur ........................................................................................................... 30 Creates Negative Perceptions ................................................................................................................ 32 Poor Legal Representation .................................................................................................................... 33 Conflict of Interests ............................................................................................................................... 35 Disproportionate Power to Prosecutors ................................................................................................. 37 Stronger Charges and Punishment ........................................................................................................ 38 foundationbriefs.com Page 2 of 70
Table of Contents
System Guarantees a Guilty Plea .......................................................................................................... 40 System is Biased.................................................................................................................................... 42 Funnels People to Bad Probation System ............................................................................................. 44 Con Evidence ............................................................................................................................................ 45 General .................................................................................................................................................. 46 Innocents Do Not Plead Guilty ............................................................................................................. 47 Plea Bargains Absolutely Necessary ..................................................................................................... 48 Only way to Uphold 6th Amendment .................................................................................................... 49 Systems Struggle without Plea Bargaining ........................................................................................... 50 Allows for Proportionality .................................................................................................................... 51 Better for the System and Society ......................................................................................................... 53 Pleas are better than Flawed Trials ....................................................................................................... 54 All Parties Prefer Plea Bargaining ........................................................................................................ 55 Acts as Insurance ................................................................................................................................... 56 Contentions ............................................................................................................................................... 57 Pro Contentions ..................................................................................................................................... 58 Con Contentions .................................................................................................................................... 60 Counters .................................................................................................................................................... 62 Pro Counters .......................................................................................................................................... 63 Plea Bargains Worse than Trials ....................................................................................................... 63 System Can Function Without Pleas ................................................................................................. 63 Efficiency Does not Justify Plea Bargaining ..................................................................................... 66 Con Counters ......................................................................................................................................... 68 Plea Bargaining is not a Direct Violation of Rights .......................................................................... 68 No Right to a Public Trial by Jury..................................................................................................... 68 Plea Bargaining Does not Violate Equal Protection .......................................................................... 68 Wrongfully Pleading Guilty is not the Fault of Plea Bargaining ...................................................... 69 Wrongful Convictions are not as Prevalent as Claimed .................................................................... 69 False Testimony is Unlikely .............................................................................................................. 70 foundationbriefs.com Page 3 of 70
Security) will appear an “Executive Summary” or “Making the Argument” box. Making the Argument • At the end of a section (i. Long articles without such formatting should still be considered to be entirely relevant. Note. this is OUR analysis so should not be considered part of the source.com Page 4 of 70 . the page number will be noted in parentheses (14). These boxes include our suggestions on argumentation and strategies for using the evidence in the corresponding section.January 2010 Using Our Brief Using Our Brief • • • • Citations will appear above the evidence. Essential information from long articles has been bulleted and bolded. it should be assumed that the original source was also without page numbering. Further explanation or analysis added by Foundation Briefs will appear in red.e. foundationbriefs. If it is not noted. not below. • If this is an Advanced Level Brief. At the end of every piece of evidence. Counters and Sample Contentions will appear at the end of the brief. following the Con Evidence.
with regards to the most desirable framework for an affirmative team. That said.November 2010 Topic Analysis Topic Analysis This resolution poses a significant challenge in terms of finding unique and relevant evidence on the Con side of the debate given the justice-oriented nature of the resolution. On the other side of the resolution. In short. Should you be able to establish this framework. con teams must seek to get away from the strictly justice-oriented framework and establish a goals-criterion way of looking at the criminal justice system in which one must simply prove that the goal of the system is to maximize social welfare. any number of the evidenced affirmative attacks should be sufficient to win you the round.com Page 5 of 70 . Under this argument. the con side would argue that by minimizing the costs of achieving justice. First. plea bargaining has the best cost-benefit ration and thus maximizes social welfare. it seems that plea bargaining does little to uphold pure justice for the multitude of reasons cited in the Pro evidence. Such a definition of the criminal justice system’s purpose would allow one to introduce the efficiency arguments that surround plea bargaining as they factor into the cost-benefit analysis that must be undertaken to affirm or negate such a stance on the justice system. foundationbriefs. the con could also bring in the ideas of proportionality and preference by all parties to prove that plea bargaining does indeed uphold a socially acceptable form of justice. Indeed. the way the debate is framed can give significant ground to either side and is thus something that you must focus on as debaters. the most beneficial view of the criminal justice system is one that is defined by a pursuit of pure justice in which each man receives his due.
wcl.September 30. "LESS RELIABLE PRELIMINARY HEARINGS AND PLEA BARGAINS IN CRIMINAL CASES IN CALIFORNIA: DISCOVERY BEFORE AND AFTER PROPOSITION 115.edu/journal/lawrev/48/pdf/berend.american. <www." American University Law Review (No Date given). 2010. Web. 1995.9% of all federal criminal convictions involved a guilty plea (4) foundationbriefs. Laura.November 2010 Topic Analysis General Information Berend. During the time period October 1.pdf>. 15 Dec. 1994 . 91.com Page 6 of 70 .
Please note: Simply pleading guilty is not necessarily a plea bargain. Plea bargaining entails negotiation between the two parties." or to only some of the charges that have been filed against him. Web. foundationbriefs.November 2010 Definitions Definitions Plea Bargaining Larson. This can help a prosecutor obtain a conviction if. <http://www. Many jurisdictions severely limit sentence bargaining." A "sentence bargain" occurs when a defendant is told in advance what his sentence will be if he pleads guilty.expertlaw. Typically. and sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Undermines Merriam Webster Dictionary—To weaken by wearing away a base or foundation Criminal Justice System North Dakota State University Criminal justice is the system of practices and institutions of governments directed at upholding social control.html>. A "plea bargain" is a deal offered by a prosecutor as an incentive for a defendant to plead guilty.com/library/criminal/plea_bargains. a defendant is facing serious charges and is afraid of being hit with the "maximum" sentence. Aaron. 2010. Plea bargains can be either based on charge bargaining or sentence bargaining. "Plea Bargains. a defendant charged with burgarly may be offered the opportunity to plead guilty to "attempted burglary. sentence bargains can only be granted if they are approved by the trial judge. deterring and mitigating crime. A "charge bargain" occurs when the prosecutor allows a defendant to "plead guilty to a lesser charge. for example." Expert Law. 15 Dec.com Page 7 of 70 . For example.
com Page 8 of 70 .Pro Evidence foundationbriefs.
That's not equal justice. John. besides education. "The Plea: Interview Stephen Bright. 2010.” The American experience with plea bargaining is yet another confirmation of that truth. Stephen. 12 Dec. 9 Dec. It seems to me that one of the most fundamental things in our society. PBS: Public Broadcasting Service. 12 Dec. Frontline. Web. PBS: Public Broadcasting Service." Interview. It is a system that replaces trial. Web. 2004. Thomas Jefferson famously observed that “the natural progress of things is for liberty to yield and government to gain ground. Second. Professor of law at Yale and Harvard Universities and director of the Southern Center for Human Rights." Interview. Timothy. is justice and we ought to have a justice system that people have faith in and that has credibility. The Supreme Court building says "Equal justice under law. 2010. Professor of law and legal history at Yale Law School. (27) Bright. Langbein." That's not true. What is wrong with the plea bargain system in our courts today? Plea bargaining is a system that is best described as one of condemnation without adjudication.com Page 9 of 70 . Fall 2003." Regulation. those deals are coerced. Web. Frontline. CATO Institute. It's not individualized justice.January 2010 Pro: General General Lynch. The criminal courts of this land are like stockyards in which people are just processed through like cattle on their way to slaughter. "The Case Against Plea Bargaining. It's not really justice at all. 16 Jan. "The Plea: Interview John Langbein. The prosecutor is basically forcing people to waive their rights to jury trial by threatening them with ever greater sanctions if they refuse to plead and instead demand the right to jury trial. with deals. 2004. which is what our constitution intended. 16 Jan. 2010. foundationbriefs.
com/id/2075319/>. In medieval Europe. prosecuting.com/roberts/independent_review. to confront your accusers. 2010. now of Yale Law School. etc. 2010. 2003. foundationbriefs.htm>. This made it almost impossible to punish the crime of murder. the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a trial. As our official system of justice became larded with more and more protections for the accused. your constitutional rights are worth. at most. which was an intolerable situation. Web. 14 Dec. actually going through the process of catching. to avoid incriminating yourself. Confession and selfincrimination have replaced the jury trial. So. Web. In this real American justice system. The practice of having people admit to what did not happen in order to avoid charges for what did happen creates a legal culture that elevates fiction over truth.slate." Slate Magazine. By making the facts of the case malleable. torture has been resurrected as a principal method of conviction. Many innocent people cop a plea just to end their ordeal. <http://www. wrote a dazzling and soon-famous article in the Public Interest called "Torture and Plea Bargaining. So. Paul C. <http://www. Plea bargaining evolved the same way." Langbein compared the modern American system of plea bargaining to the system of extracting confessions by torture in medieval Europe. "Why Innocent People Confess. 8). In both cases. a few years off your sentence. and convicting a criminal the official way became impossibly burdensome. In 1978 Professor John Langbein. to put it in a more sinister way: You get a heavier sentence if you insist on asserting your constitutional rights to a trial. 15 Apr. Langbein explained. 2002. torture developed as a way to extract the necessary confessions. the controversial practice arose not because standards of justice were too low. 12 Dec.com Page 10 of 70 . "The Growing Problem Of Wrongful Conviction. but because they were too high.January 2010 Pro: General Roberts. it permits prosecutors to bring charges in the absence of crimes. Legal scholar John Langbein compares “the modern American plea bargaining system” with “the ancient system of judicial torture” (1978. As this legal culture now operates. Kinsley. VDare. conservatives bemoaning its coddling of criminals). Essentially. 14 Dec. Or. Just as Bentham warned. Michael. a conviction for murder required either two eyewitnesses or a confession by the perpetrator. 95 percent of American criminal defendants are tried under a system entirely different from the one we learn about in school and argue about in politics (liberals celebrating its noble protections.vdare." The Independent Review. Plea bargains have corrupted the justice system by creating fictional crimes in place of real ones. to privacy from searches without probable cause. plea bargains enable prosecutors to supplement weak evidence with psychological pressure.
January 2010 Pro: General Berend. Pro: The purpose of the criminal justice system is often described as a “search for the truth” in order to convict the guilty and free the innocent. 2010. Laura. Web. (4) The search for “legal truth” is intended to culminate in a trial that is designed to recreate an event (6) The criminal justice system employs the adversarial process as the method for ascertaining “legal truth. <www.pdf>. foundationbriefs. Indeed.edu/journal/lawrev/48/pdf/berend. "LESS RELIABLE PRELIMINARY HEARINGS AND PLEA BARGAINS IN CRIMINAL CASES IN CALIFORNIA: DISCOVERY BEFORE AND AFTER PROPOSITION 115. if you can establish that the debate is over whether or not plea bargaining helps “convict the guilty and free the innocent” and then provide the evidence surrounding wrongful convictions and prosecutions.wcl." American University Law Review (No Date given).” (7) Our reason for including the above definition and information is to help in the establishment of the correct framework. the debate should be yours.american.com Page 11 of 70 . 15 Dec.
and the judge accepts the plea. you son of a bitch. But the Supreme Court of the United States says that's OK. Albert Alschuler is a professor of law and criminology at the University of Chicago. Web. "Well." Interview." And he's saying. …[However. 12 Dec.] a great many judges do not accept these Alford pleas. The defense lawyer goes out and confers with his client and gets his lines right.com Page 12 of 70 . and do insist on a confession from the defendant. 16 Jan. Albert . Do you feel better now?" foundationbriefs. "The Plea: Interview Albert Alschuler. OK. if I've got to say I did it to take the deal. It's a coerced confession. 2004. PBS: Public Broadcasting Service. 2010. Frontline.January 2010 Pro: Denial of Due Process Denial of Due Process Alschuler. I'll say it. … You can sort of satisfy your conscience with this salve of "I made him say he did it. I think it's hard to imagine a clearer denial of due process than sending someone to prison who hasn't been tried and who hasn't admitted his guilt. … But it's usually a hypocritical show. They go back in and they put on a better show for the judge.
that if the one who pleads and cooperates gets a four-year sentence. (26-27) foundationbriefs. Chief Judge William G. Not surprisingly. As a practical matter this means. recently filed an opinion that was refreshingly candid about what is happening in the modern criminal justice system: Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark. such a disparity imposes an extraordinary burden on the free exercise of the right to an adjudication of guilt by one’s peers. and incontrovertible. Plea bargaining rests on the constitutional fiction that our government does not retaliate against individuals who wish to exercise their right to trial by jury. CATO Institute. then the guideline sentence for the one who exercises his right to trial by jury and is convicted will be 20 years.… Today. It is the sheerest sophistry to pretend otherwise. Timothy. under the Sentencing Guidelines regime with its vast shift of power to the Executive.January 2010 Pro: Punishment for Trial Plea Bargaining Punishes People for Going to Trial Lynch. Although the fictional nature of that proposition has been apparent to many for some time now. 9 Dec." Regulation. Criminal trial rates in the United States and in this District are plummeting due to the simple fact that today we punish people—punish them severely — simply for going to trial. 2010. "The Case Against Plea Bargaining. Web. brutal. Young of the Federal District Court in Massachusetts. Fall 2003.com Page 13 of 70 . that disparity has widened to an incredible 500 percent. as between two similarly situated defendants. what is new is that more and more people are reaching the conclusion that it is intolerable. for example.
"Surrender your right to jury trial. Albert . "The Plea: Interview Albert Alschuler. Albert Alschuler is a professor of law and criminology at the University of Chicago. [The plea bargaining system is] inconsistent with the law that we apply to waivers of other rights. and if you represent yourself. we will see to it that you are punished twice. Frontline. PBS: Public Broadcasting Service. you can exercise your right to be represented by a lawyer. But every defendant has a right to go to trial. it's a choice they make to plead guilty. Plea bargain works by threat. 2004. Frontline. What the prosecutor says to a criminal defendant in plea bargaining is." Interview. but your choice is constrained by coercion. Once for the offense. The problem with choice arguments is that they neglect the main dynamic of plea bargaining which is the pressure that the prosecutor puts on you to do it his way. 16 Jan. 2010.most people who are in the criminal justice system are poor -prosecuting your wife as well as yourself. "Well.January 2010 Pro: People Forced to Forgo Rights Plea Bargaining Forces People to give up their Rights Alschuler. and once for having had the temerity to exercise your right to jury trial. "The Plea: Interview John Langbein. Web. But if you're convicted with a lawyer representing you. 2010. The prosecutor can pile it on if you don't play it his way. threatening to recommend the most severe end of the sentence range. or if you go to trial and are convicted of an offense. 12 Dec. we'll give you five. 16 Jan. and things of this sort. you have a choice. keeping you locked up in pretrial detention if you're poor -. It is therefore a deeply coercive system. 12 Dec. John. foundationbriefs.com Page 14 of 70 . we'll give you 10 years. PBS: Public Broadcasting Service. And the prosecutor has many devices which increase the level of coercion: multiplying the counts." Langbein. Web." That is a coercive system. 2004." Interview. What do you suppose would happen if a prosecutor said to a defendant. Yes.
by every means possible. Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining. 28) foundationbriefs. and require childcare arrangements to be made and paid for. The criminal justice system contains numerous levers to induce defendants to abandon their right to trial and to accept a guilty plea." minimizing process is the best way to minimize punishment.. Tedious lines to get through courthouse security. Rep. How. Pleading guilty is almost always the best route to truncating the process. to expand and strengthen these levers. Covey. 1981. in the end. Systemic Coercion: Unconstitutional Conditions in the Criminal Law."° strict limitations on what can be brought into the courtroom (e. and seemingly endless continuances (that require working defendants and accompanying family members to burn up vacation and sick days.com Page 15 of 70 . interminable waiting for cases to be called. does the system manage to induce so many defendants to relinquish their trial rights and accept guilty pleas in light of the strong cognitive preference to do precisely the opposite?33 In short. then. As numerous first-hand accounts of the criminal justice system attest.January 2010 Pro: People Forced to Forgo Rights Abrams. Russel. cognitive biases may well impel defendants to opt for trial. one explanation for why loss-averse criminal defendants plead guilty in such great numbers is that they are consistently getting such "good deals"-that is. the costs of contesting a criminal charge can be astounding. Rep. no food. our criminal justice resources would be exhausted. Print. Our formal. These high process costs explain why almost every misdemeanor defendant. resolves his case with a guilty plea. and its evolution has tended. Where "the process is the punishment. Journal of Criminal Law and Criminology. incur repeated transit costs. etc. 2000. with few exceptions. Recent decisions have constitutionalized and expanded the rights of criminal defendants to the point where if one in five defendants demanded all such rights. As Birke pointed out. plea bargains in which the "utility value of the plea" is so much higher than that of trial that even loss-averse defendants cannot say no. elaborate criminal adjudicatory process is perceived as inadequate for use by more than a small percentage of those charged with crimes. Georgia State University. Print. and the only way to elicit a waiver from a rational defendant is make it in his interest not to assert his right. All of these process costs conspire to dissuade defendants from exercising their right to a trial.g. High process costs also undoubtedly contribute to the high plea rate in felony cases.) can make the cost of fighting a criminal charge appear greater than the cost of pleading guilty. Howard E. even if defendants manage to make bail or are released on their own recognizance before trial. no reading materials to diminish the tedium). (Pg. but things are far from equal. Most defendants must be persuaded to waive their rights. All things being equal.
… Any of us will plead guilty if the disparity between what we're threatened with if we go to trial and lose. has been so cowardly about seeing the evils of the plea bargaining process. and what we get if we don't is increased enough… Part of the reason why we in this country have criminal sentences that are so much more severe than in the rest of the civilized world. which has been so anxious to protect various rights of persons who go to trial. Web.com Page 16 of 70 . … It is very sad that the Supreme Court. as exemplified by the famous Alford case. 16 Jan. "I'm innocent. where the fellow actually stood up and said. We have to have these perverse sentences as a threat in order to get people to waive the right to jury trial and take something less. It is true that one always has the right to go to trial. … The Supreme Court has been … indifferent to the pressures on accused in the plea bargaining process. 2010." It's terribly sad. So there is a linkage between the notorious severity of our criminal law and the plea bargaining system. PBS: Public Broadcasting Service. again. John. But. 12 Dec. is the need that prosecutors have to threaten people with these huge sentences in order to get them to waive the right to jury trial. but I'm pleading because the disparity of outcome that they're threatening me with is too great. but the prosecutor can make that right so costly that only a fool will exercise the right. 2004. the trial is there for anyone who chooses that option. foundationbriefs.January 2010 Pro: People Forced to Forgo Rights Langbein." Interview. "The Plea: Interview John Langbein. Frontline.
" Regulation. Once a person has been charged with a crime. Are the disparate punishments for the same offense sensible? The courtroom just does not seem to be the proper place for an auction and haggling. but it is defective. receives a prison sentence of 10 years. Fall 2003. but sells his right to call his own witnesses. Hispanics for harsher treatment. he hires a local attorney and. in addition. It is a forced association. after conviction. Imagine four people who are charged with auto theft.com Page 17 of 70 . But plea bargaining is not free trade. The logical fallacy of division says that what may be true for the whole is not necessarily true for the parts.” According to Sandefur. However. 2010. (27) Sandefur argues that. CATO Institute. Plea bargaining tactics fail for similar. 9 Dec. After conviction. Instead. Web. a prosecutor can indeed “throw the book” at any given tourist. reasons. F. After conviction. (27) Sandefur’s defense of plea bargaining repeatedly returns to the idea that criminal defendants have the “right to make a contract.” as in other free-trade situations. the tourists have no right to complain because they have no “right to leniency. The third defendant insists on a trial. say. The retort that Hispanic arrestees do not have a “right to leniency” would be an unsatisfying defense of the prosecutor’s handling of such cases. Thus.January 2010 Pro: Violates Equal Protection Plea Bargaining Violates Equal Protection Lynch. (27) foundationbriefs. but sells his right to be represented by his famous attorney-uncle. The fourth insists upon a trial. they are instead being punished for “violating the law. One defendant pleads guilty to the offense and receives three years of jail time. Lee Bailey. The second defendant insists upon a trial. "The Case Against Plea Bargaining. presents a rigorous but unsuccessful defense and. we would know that something was very wrong. he receives five years. in such cases criminal defendants are not being punished for a refusal to bargain. if it came to light that the prosecutor was targeting. he does not have the option of walking away from the state. though perhaps more subtle. Just because the state can throw the book at someone does not mean that it can use its power to retaliate against a person who wishes to exercise his right to a trial. sells his right to a speedy trial. Timothy. he receives four years.” That line of argument has surface appeal.
Pro: Violates Equal Protection
Abrams, Howard E. Systemic Coercion: Unconstitutional Conditions in the Criminal Law. Rep. Journal of Criminal Law and Criminology, 1981. Print. The equal protection clause of the fourteenth amendment requires that persons similarly situated be similarly treated. Systemic coercion by its very nature…denies a certain benefit. Two defendants identical in every respect save that one demands his constitutional due are thus treated differently. Equal protection under the laws demands that the government justify the disparity.
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Pro: Avoids Trial Safeguards
Plea Bargaining Avoids the Safeguards Present to a Trial
Lynch, Timothy. "The Case Against Plea Bargaining." Regulation. CATO Institute, Fall 2003. Web. 9 Dec. 2010. The rarity of jury trials is not the result of criminals who come into court to relieve a guilty conscience or save taxpayers the costs of a trial. The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used. And plea bargaining is the primary technique used by the government to bypass the institutional safeguards in trials. (24) Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard Law Review, 2004. Print. Another reason why plea results diverge from likely trial outcomes is that plea bargaining is hidden from public view. First, plea bargaining is a secret area of law, unlike trials, which have clear rules. In plea bargaining, it is easier for inexperienced lawyers to fall afoul of unwritten norms by pushing too hard, not hard enough, or not in the right way. The paucity of hard legal rules also leaves more room for favoritism, favor-seeking, and connections to operate. (Pg. 14)
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Pro: Truth Concealed
Plea Bargaining Conceals the Truth
Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010. Albert Alschuler is a professor of law and criminology at the University of Chicago. Well, it's a system that's designed to keep the truth from coming out. We don't care enough in the American criminal justice system to listen to the defendant's story. We do everything possible to avoid having an impartial party sit there and hear both sides and decide who's telling the truth. We have a system that makes the defendant half guilty. There's a 50 percent chance that he'll be convicted at trial. Let's give him 50 percent of the sentence he would have if he were really guilty, so it's half guilty.
Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/661CoveyPublished.pdf> Under present law, criminal defendants have little right to obtain meaningful pre-plea discovery. Unlike civil discovery, the "criminal discovery rules are not designed to inform a defendant fully of the case against him." In busy urban systems, what discovery defendants do obtain often amounts to little more than the police reports describing their alleged crimes. Even where significant discovery is mandated, the law often does not require that it be provided prior to guilty plea hearings. Brady v. Maryland, for instance, requires prosecutors to turn over material exculpatory evidence at or before trial, but omits any mention of a requirement to provide exculpatory evidence prior to entry of a guilty plea. As a result, the scope of prosecutorial obligations to produce such discovery during plea bargaining remains in doubt. (Pg. 88-89)
Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard Law Review, 2004. Print. For example, defense lawyers without connections to prosecutors may be at a disadvantage in persuading prosecutors to give them informal discovery. The defendant may not have the money to hire a private investigator. Or, the defendant may be innocent and thus have no private knowledge of the evidence of guilt. The danger that bluffing, fear, or ignorance will skew innocent defendants’ bargaining is one of the most palpable injustices of plea bargaining. (Pg. 33) foundationbriefs.com Page 20 of 70
Every law. and criminals alike. 2000. <http://www. which eliminates trial. 26) Langbein. John. 12 Dec. regulation. And therefore it makes the remorse talk just window dressing by apologists who want to keep this existing system which is convenient for them. 2010." Interview. Web. Russel. 16 Jan. What is in fact happening is that the accused is being told by the prosecutor. "You accept guilt and confess and bear false witness against yourself and we will then see to it that it gets characterized as contrition or remorse. The result was demoralized prosecutors who began to see in the plea bargain a way to game the system back toward conviction. Frontline. Current discovery rules enhance the prosecutor's ability to demonstrate the strength of her case and hide its weaknesses. The criminal justice system deemphasized pursuit of the truth and focused on convicting the defendant." The point is that the coercion. Georgia State University.vdare. 2003. guilty or not. 2010. VDare. prosecutors. But that's a pack of lies. the exclusionary rule turned the criminal justice system into a lottery for police.January 2010 Pro: Truth Concealed Roberts. By releasing criminals known to be guilty. "The Plea: Interview John Langbein. Covey.com Page 21 of 70 . (Pg. The unintended consequence of the exclusionary rule was cultural change. Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining. or reform has unintended consequences. PBS: Public Broadcasting Service." The Independent Review. A case can be made that the exclusionary rule changed the culture of the criminal justice system and led to the coerced plea bargain. eliminates our ability to know you were in fact beyond reasonable doubt. That's one of the standard excuses that are given by apologists for the system. which in turn makes it easier to sell plea bargains to overconfident and egocentric buyers. Plea bargaining is sometimes justified on the ground that we are giving a lighter sentence to someone who is showing contrition or remorse for the offense. Print. Rep. 2004.htm>. Web. Defendants pleading guilty often indicate remorse for the crime. 14 Dec. 15 Apr. "The Growing Problem Of Wrongful Conviction.com/roberts/independent_review. Paul C. foundationbriefs.
It's not simply that we lock you up. 2004. the purported slayer of Dr. the most famous I think is the prosecution of James Earl Ray. What has happened is that you have been threatened enough that you waive your right to have that adjudication. it's always out of sight. The evidence does not come out in public. the Sixth Amendment calls for is public jury trial. not only does plea bargaining replace the constitutional requirement of trial with a deal. And as a result. 16 Jan. We lock up people who have tuberculosis. philosophical understanding is the condemnatory force of the criminal sanction. Frontline." Interview. The judge says you have wronged society.January 2010 Pro: Value of Publicity Lost Value of Publicity is Lost Langbein. What the Bill of Rights. Most people have the television model of Perry Mason or somebody similar contesting for a verdict of a jury. John. It's secret. The important difference is we lock you up in circumstances in which we condemn you. It's not ventilated in public. but the evidence doesn't come out. So part of what we lose in the plea bargaining process is not only the rights of the innocent accused. Moreover. One of the saddest things about plea bargaining is that it is not widely understood. Plea bargaining devastates the condemnatory force of the criminal sanction because those sanctions are now applied without adjudication. That causes very great disquiet in some cases. PBS: Public Broadcasting Service. … foundationbriefs. 2010. Martin Luther King. but we're also losing the very important benefit of publicity associated with a trial tradition. but plea bargaining attacks another feature of the constitutional design. and there has been a lingering suspicion for decades that the case involved a wider plot than what was acknowledged. and plea bargaining is not public.com Page 22 of 70 . That judge has not examined the question of whether you are guilty or innocent. Web. …The single defining characteristic of the criminal law in the theoretical. "The Plea: Interview John Langbein. The plea bargain in that case resulted in no public ventilation of the evidence. 12 Dec. And the public doesn't really know what happened. when plea bargaining actually happens.
such private information cannot affect plea prices if the defendant has no way to communicate the information to the prosecutor or a jury. they're basically lying and doing something that they don't want to do. PBS: Public Broadcasting Service.January 2010 Pro: Damaging to Innocents Damaging to Innocents Green. they're in a terrible predicament because if they admit their guilt." Interview. Web. your possibility for parole is much lower because the parole board basically expects that you will be contrite.com Page 23 of 70 . I think. once charged. It's a terrible system. a high number of guilty pleas is problematic because we know that a fair number of those guilty pleas are going to be cases where the defendant was actually innocent… Covey. innocent and guilty persons alike almost always act rationally by pleading guilty rather than contesting guilt at trial. 2009. Now that's fine for people who actually did the crime. Web. Frontline. they have to serve their full jail time when other people who were guilty of crimes would be eligible for parole. Although seemingly a highly salient piece of information. "The Plea: Interview Bruce Green. because not only have you been wrongfully convicted. Washington and Lee University. a defendant’s honest but unverifiable belief that she is factually innocent of the crime charged. But for people who are innocent. but now when you come up for parole. Bruce. The worst thing you can be. As a result. in a system where prosecutors are cavalier. <http://law. Plea bargaining has an innocence problem. 2010. are basically taking the cases as presented to them by the police. is an innocent person in prison. Russell D. charging them and then offering very dramatic inducements to plead guilty. defendants who know they are innocent would appear to do no better in plea bargaining than defendants who know they are guilt (Pg.wlu. And on the other hand. for instance.edu/deptimages/Law%20Review/661CoveyPublished. 12 Dec. 16 Jan. The dominant theoretical model of plea bargaining— socalled "trial shadow theory"—predicts that. Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham University. Signaling and Plea Bargaining's Innocence Problem. (Pg. On the other hand. 13 Dec.pdf>. if they don't do that. 74) Take. 2004. 75) foundationbriefs. which means you admit your guilt and have grown psychologically in some way so that you're no longer a threat to society. Rep. 2010.
Cardozo Law Review. 4th ed. the offer cannot harm him.edu/deptimages/Law%20Review/661CoveyPublished. Threat is an essential part of all plea bargaining: Take the deal or you’ll do worse after conviction. (Pg. as a result. 2010. Law and Contemporary Problems. foundationbriefs. 13 Dec. even a very weak one. 1998. Given that the innocent defendant is prosecuted. the prosecutor cares less about the strength of the cases she brings. One attack is that the threat is so effective that it drives some innocent defendants to plead guilty along with the mass of guilty ones. its outcomes are a product of a wide array of factors. unfair bargains. 130) Gross. As a result. Web. Russell D. Partial Ban on Plea Bargains. Print. the prosecutor can reach a guilty plea in almost every case. Samuel R. which occurs in the shadow of trials. 27.wlu. Knowing that gaining convictions in weak cases is not difficult. he might realize that he is better off accepting a plea bargain offer. Print. Lost Lives: Miscarriages of Justice in Capital Cases.January 2010 Pro: Damaging to Innocents Gazal-Ayal. An additional source of unfairness. Plea bargaining’s pricing model misprices pleas in part because it fails to incorporate a critically important piece of information—the defendant’s subjective knowledge of guilt or innocence—into the pricing mechanism. Rep. <http://law. including draconian sentencing schemes and enormous prosecutorial charge discretion that may create fundamental bargaining disparities and. (Pg. Washington and Lee University. When plea bargaining is available. 2008. 61. she can assure a conviction by offering the defendant a substantial discount—a discount big enough to compensate him for foregoing the possibility of being found not guilty. meaning when the probability that a trial would result in conviction is relatively small. a coercive aspect to this bargain—the defendant must risk a severe penalty in order to exercise his right to trial—and plea bargaining has been strongly criticized on that ground.pdf> Plea bargaining is part of a complex system of criminal justice with dynamic and interdependent parts. Rep. misprices the guilty pleas of innocent defendants. Vol. The point is that the defendant would have been much better off if the prosecutor had not been able to offer him a plea bargain in the first place because then she probably would not have charged him at all. is implicit in the basic economic model underpinning plea bargaining: The risk that bargaining. Signaling and Plea Bargaining's Innocence Problem. There is. 7) Covey. Oren. 2009. 5th ed.com Page 24 of 70 . she is more likely to prosecute weak cases where defendants are more likely to be innocent. Vol. undeniably. however. At that stage. When the case is weak. Rep.
" OHIO STATE JOURNAL OF CRIMINAL LAW 7 (Spring 2010): 653-58. (657) foundationbriefs. "Defense Counsel and Plea Bargain Perjury. such as the client in our hypothetical. suggesting that prosecutors and police have failed to detect such perjury. has repeatedly been identified as contributing to wrongful convictions. Kevin.pdf>. defense counsel have failed to expose such perjury through cross-examination and other impeachment techniques. Although a number of participants in our adversary system are responsible for detecting perjury in a cooperating witness scenario. <moritzlaw. False testimony from cooperating witnesses seeking reduced prison sentences. and jurors have failed to identify and ignore such perjury. Web.edu/osjcl/Articles/Volume7_2/McMunigal-FinalPDF. 15 Dec.osu. 2010.com Page 25 of 70 . DNA exonerations and subsequent investigations have shown that those participants have failed to prevent informant perjury from corrupting verdicts in a shocking number of cases.January 2010 Pro: False Testimony Creates False Testimony McMunigal.
the number of people who confessed went up to 100 percent. If the justice system cannot convict the right person in murder cases.org/ontherise. white-collar criminals. 2010. <http://truthinjustice. Most result from plea bargains. foundationbriefs. Innocent people also assume that innocent people do not get convicted. but as the initial task they were given was made difficult.html>. "Psychological Experiments Show Even Healthy People Confess When They Did Nothing Wrong.January 2010 Pro: Wrongful Convictions Plea Bargaining Creates Wrongful Convictions "Wrongful Convictions on the Rise. Vedantam. The broader issue is the high rate of wrongful conviction. and plea bargains are seldom subject to appeal even when the defendant is coerced." Idaho Statesmen. Nearly a quarter of all convictions overturned in recent years based on DNA and other evidence have involved false confessions In one experiment. who has studied the phenomenon. or convict the defendant lawfully according to the rules. In reality. and drug dealers? These convictions do not receive the scrutiny that capital offenses receive. Most volunteers denied it.com Page 26 of 70 ." Truth in Justice. <http://www.idahostatesman. how can we have any confidence that police and prosecutors are doing better when it comes to burglary. wrongful conviction is not confined to capital offenses. are more likely to waive their constitutional rights to remain silent and to have a lawyer present. Kassin asked volunteers to perform a challenging task on a computer but warned them not to touch the "Alt" key or risk damaging a computer. Web. or that objective evidence will exonerate them. the volunteer did nothing wrong. 2007. 14 Dec. Shanker. Web.htm>. Innocent people. they became less sure because they were distracted." said psychologist Saul Kassin at Williams College. 2 Nov. Every stage of increased pressure led ever larger numbers of volunteers to believe they were really guilty. Volunteers were told that the computer had been damaged and were asked whether they hit the banned key. Kassin found. "Innocence is a state of mind that puts innocent people at risk. When researchers had confederates lie about having seen the volunteers hit the Alt key. 2010. Moreover.com/2007/10/02/172974/psychological-experimentsshow. 14 Dec.
that each case in Group B is weaker than every case in Group A. she can prosecute a much larger group of defendants (Group B). They merely have to offer each defendant a settlement he prefers to trial. Print. where every weak case can be easily replaced by a strong case that can be settled without raising the same concerns. as the number of total prosecutions rises. she has to choose additional cases to which she attaches a lower grade. Rep. weaker than those in Group A. The fact that Group B is bigger cannot justify a preference for Group A. the important question is whether the proportion of innocent defendants in Group B is higher than in Group A. it is not the number but the proportion of innocent defendants that matters. allowing plea bargaining increases the proportion of wrongful prosecutions. When plea bargains increase the prosecutor’s capacity. since some of them are likely to be innocent. 29-30) Yet. the cases in Group B will be. not settled.44 In the absence of plea bargaining.45 However. This does not mean. 27.com Page 27 of 70 . Cardozo Law Review. A prosecutor can sometimes give a weaker case a higher grade than a stronger one. the proportion of innocent defendants in Group B is higher than in Group A. so will the number of prosecuted innocents. Because the cases are on average weaker. will be weaker than the cases in Group A. the strength of a case is necessarily correlated with the probability that the defendant is guilty.January 2010 Pro: Wrongful Convictions Gazal-Ayal.92 Increasing the risk of wrongful convictions makes even less sense in an overburdened criminal justice system. Thus. however. 5th ed. 12) foundationbriefs. the prosecutor can pursue a certain group of defendants (Group A). 2008. an innocent defendant might accept the offer in order to avoid the risk of a much harsher result if he is convicted at trial. and thereby plea bargaining could very well lead to the conviction of factually innocent defendants. Thus. because the conviction in the former is more important to her. Reducing the number of wrongful prosecutions just by reducing the number of total prosecutions makes no more sense than arbitrarily exonerating a random number of inmates. 17) Moreover. most importantly. (Pg. 10) In all these cases. Vol. (Pg. Introducing plea bargaining influences the prosecutor’s choice of cases in various ways. Group A contains the cases with the highest expected values per resources. Society bears a “moral cost” whenever an innocent person is convicted. in fact many innocent defendants are willing to accept minor punishment in return for avoiding the risk of a much harsher trial result. regardless of the sentence. Oren. rounding down the punishment to zero when the case is weak is the moral and efficient thing to do. regardless of the real culpability of the defendant. Only very rarely is the highest acceptable sentence of a defendant zero. Therefore.43 Plea bargains are not only cheaper than trials. it substantially reduces the resources needed for each case. these Group B cases will be more expensive. But since the probability of conviction is one of the factors that influence the choice of cases. On average. Naturally. prosecutors can extract a guilty plea in almost any case. Partial Ban on Plea Bargains.47 there is a good reason to answer that question in the affirmative. Contrary to the arguments of some. create lower post-conviction value and. Weak cases should be dismissed. with plea bargaining. With plea bargaining. or because prosecuting it is less expensive.(Pg. Most importantly. the plea bargaining system increases the risk of wrongful convictions. If trials have anything to do with revealing guilt. it is argued that even if defendants make rational decisions. on average. (Pg. convicting the innocent is wrong. they are much cheaper.
"Wrongful Conviction: Causes and Public Policy Issues. 2010. American Bar Association. Because few cases go to trial. Second.com Page 28 of 70 . The sentencing differential alone is enough to make plea bargaining coercive. Therefore. Plea bargaining is a way of trading the risk of 20-years-tolife for the certainty of five-seven. plea bargaining greatly increases the number of cases that can be prosecuted. 14 Dec. and ratcheting up the odds to make it nearly irresistible. it is every bit as much an issue that affects public safety and should be of equal concern to so-called law-and-order conservatives. it is arguable that being convicted of a crime that one did not commit. represents one of the worst nightmares imaginable.000) for the certainty of a smaller bad outcome (a bill arrives and you're out $850). 14 Dec. 14 Dec. 2003. In societies that value the freedom of their citizens and have done so much to protect that freedom. Ronald. Web.htm>. foundationbriefs. "The Growing Problem Of Wrongful Conviction. Prosecutors have found that they can coerce a plea and elevate their conviction rate by raising the number and seriousness of the charges that they throw at a defendant. Sloppy investigations are less likely to lead to apprehension of the guilty party." The Independent Review. and every time we convict an innocent person we leave the actual offender free to continue victimizing citizens. Counsel advises defendants that conviction at trial on even one charge can carry more severe punishment than a plea to a lesser charge. 2010. police have learned that their evidence is seldom tested in the courtroom. Kinsley. when we consider the two major types of errors—false positives and false negatives—we find much more preoccupation with the question of the guilty going free.slate. who might then victimize others. Plea bargaining might also be thought of as an insurance policy. probably because of the public safety implications of freeing a criminal. "Why Innocent People Confess.January 2010 Pro: Wrongful Convictions Roberts. But by creating this choice. 2010. plea bargains undermine police investigative work. of course. although the issue of wrongful conviction is generally portrayed as a socalled liberal issue focusing on the rights of the accused. VDare. Insurance is a way of trading the risk of a large bad outcome (your house burns down and you're out $100. 12 Dec. The irony." Slate Magazine. Carelessness creeps in. is that these two errors are inversely related. First. Michael. And yet. <http://www. 15 Apr. Web. Paul C.com/id/2075319/>." Criminal Justice Magazine 18. Web. Huff. and being incarcerated with criminals or even put to death. Plea bargaining is a major cause of wrongful conviction.1 (Spring 2003). <http://www. 2002.com/roberts/independent_review. American justice virtually guarantees that innocent people are being punished.vdare.
Web. Rather.com Page 29 of 70 . we do not and should not view an erroneous conviction and an erroneous acquittal as equal in significance.pdf>.January 2010 Pro: General McMunigal. Kevin. conviction of an innocent person is a much more serious error than acquittal of a guilty person. 2010. As reflected most clearly in our use of the “beyond reasonable doubt” standard of proof in criminal trials. 15 Dec.osu. (654) foundationbriefs. "Defense Counsel and Plea Bargain Perjury.edu/osjcl/Articles/Volume7_2/McMunigal-FinalPDF. <moritzlaw. a judgment that DNA exonerations throughout the country have dramatically illustrated and reinforced." OHIO STATE JOURNAL OF CRIMINAL LAW 7 (Spring 2010): 653-58.
It’s as if the jurors hold the view that if a person was there when the crime occurred. 2010. in the year 2000 there were 2.5 percent accurate in those cases and made errors in only one-half of 1 percent (0.500 wrongful convictions among those 2. Four inmates were pardoned and released. criminal justice system might be accurate in about 99.5 percent) of those convictions.2 million arrested for index crimes. That suggests. a level of accuracy that might inspire great confidence. Web.S. suggesting the possibility of a significant error rate. the governor of Illinois declared a moratorium on the death penalty in that state following a period of time in which more death row inmates had been exonerated than had been executed. "Wrongful Conviction: Causes and Public Policy Issues. Such cases include those where there is a close resemblance between the actual offender and the innocent defendant.5 percent as our estimate.000 criminal cases where biological evidence was available. Ronald.5 percent of the cases of felony conviction. We also know that about 70 percent of those arrested for felonies are ultimately convicted of either a felony or a misdemeanor. This means that if we assume that the system was 99. we used 0. although experts and judges increasingly share the view that eyewitness identification of a suspect previously unknown to the victim/witness is highly suspect and perhaps the least reliable kind of evidence. DNA testing excluded more than 25 percent of prime suspects. jurors still tend to attach special importance to such identification and see the testimony of eyewitnesses as powerful. Based on the responses to our survey. that rate of error would have produced about 7. a recent study of capital cases that spanned more than 20 years raised the possibility of an even higher incidence of error. in 18." Criminal Justice Magazine 18.com Page 30 of 70 .) Recently. For example.2 million arrests in the United States for index crimes alone. and some where the accused person bears little if any resemblance to the actual criminal—such as a foot difference in height or being of a different racial/ethnic heritage. then surely that person should be able to identify the criminal because. In our own database of nearly 500 cases. Governor George Ryan commuted all Illinois death sentences to life in prison just shortly before he left office in January 2003. one’s perspective on the magnitude of the problem might change when one considers the overall volume of cases processed through the U. perhaps. they "saw it happen.January 2010 Pro: Wrongful Convictions Wrongful Convictions do Occur Huff. after all. 553 persons were executed while 80 were released and had their sentences vacated. So a small error rate in a very large system can result in thousands of miscarriages of justice and allow many of the criminals who actually committed those crimes to remain free to victimize others. eyewitness error was involved in nearly 60 percent of the cases. (In a highly controversial move. And finally.S. criminal justice system. 14 Dec. In fact. If our "panel of judges" is correct. However.1 (Spring 2003). We also know that in 25 years of experience with the death penalty. American Bar Association. this means that the U." But what did they really "see"? foundationbriefs. Unfortunately.
org/wc/mi_report_april04.” and that on retrial. 14 Dec.January 2010 Pro: Wrongful Convictions Sherrer.720.442 of the defendants (7%) would have been exonerated. if every one of the 14. with the result that 680. "Report Downplays Wrongful Convictions in U.892 of the defendants (82%) would have been re-sentenced to a lesser punishment.600 of those cases (68%) would have been reversed.000 rape cases were excluded by DNA testing. the findings reported in A Broken System (and its follow-up report.970.S. That finding is particularly significant because exclusionary DNA evidence is only available in a small percentage of all criminal cases. 2010. that “7% of capital cases nationwide are reversed because the condemned person was found to be innocent. A Broken System.html>.com Page 31 of 70 ." Forejustice.A Broken System: Error Rates in Capital Cases – found that 68% of the 4. It was reported in 1997 that the FBI found that 25% of the suspects in 12. the defendant was given a lesser sentence in 82% of those reversed cases. Consequently. 2004. February 2002) are consistent with the estimates from 1964 to 2000 that there are serious systemic errors in the ability of this country’s legal system to accurately distinguish the innocent from the guilty. Hans. foundationbriefs.000 criminal conviction in this country from 1989 through 2003 had been subjected to the same degree of appellate review as is a capital case. That study . Part II. then 9. Solid support for the pervasiveness of wrongful convictions indicated by those numerous estimates is provided by the findings of a study published in June 2000. Web.295. and 7. <http://forejustice.578 capital cases finalized from 1973 to 1995 was reversed on appeal. So based on the findings of that extensive multi-year study that was overseen by the esteemed Professor James Liebman (co-author of Federal Habeas Corpus Practice and Procedure).
12 Dec. Rep. 5th ed. prosecutors can extract a guilty plea in nearly every case. regardless of the strength of the evidence. Even an innocent defendant may rationally prefer a specified lenient sentence to the risk of a much harsher sentence resulting from a wrongful conviction at trial. When plea bargaining is available. When almost every case results in a plea of guilty. including very weak cases. Albert Alschuler is a professor of law and criminology at the University of Chicago. Since some cases are weak because the defendant is innocent.January 2010 Pro: Negative Perceptions Creates Negative Perceptions Alschuler. 1) Opponents of the plea bargaining system argue that the practice is inherently dangerous to innocent defendants. PBS: Public Broadcasting Service. 16 Jan.com Page 32 of 70 . A defendant might plead guilty. That isn't the image offenders should have of the criminal justice system. not because he is guilty. (Pg. but because the prosecutor offers some concession in return. 2004. Albert . Partial Ban on Plea Bargains. Cardozo Law Review. however. (Pg. 27. more innocent defendants are charged and as a result more are convicted. Web. Gazal-Ayal. Print. In terms of defendants' perceptions of the system. "The Plea: Interview Albert Alschuler. Frontline. simply by adjusting the plea concession to the defendant’s chances of acquittal at trial. 2008. it encourages the view that the system is all a matter of networks and connections and who do you know and what kind of deal you make. Oren. that's probably the view of the world that got a lot of them into trouble in the first place. Vol." Interview. prosecutors have much less interest in screening away weak cases. 2010. 2) foundationbriefs.
Bruce. Funding for public defenders is critically deficient in a number of locations in our nation. what are the benefits. because very few defendants can afford a lawyer. In an ideal world. that there's some give and take. "Wrongful Conviction: Causes and Public Policy Issues. sometimes prompting litigation.January 2010 Pro: Poor Legal Representation Poor Legal Representation Green. Sometimes the notion of plea negotiations suggests that real negotiations are going on. you get time served. PBS: Public Broadcasting Service. And defendants make decisions with very limited information. Web. 16 Jan. the defense attorney will take whatever the prosecutor gives. as recently happened in Wayne County. take it or leave it. defense lawyers are appointed in almost every case." Interview. The suit. you get five years. Michigan. So in many cases. in some areas.1 (Spring 2003). Most criminal defense attorneys throughout the country carry very onerous caseloads. They may be representing 200 or 300 defendants in a year. it could be just the complaint. a maximum of $225 for investigation and preparation of a case that may result in a sentence of life imprisonment) make it impossible to provide meaningful representation to clients. the defendant would be advised about what the evidence is that the prosecution's going to introduce. alleges that low rates of compensation (e. "This is what you're offered. 2010. "The Plea: Interview Bruce Green. Ronald. Now what's the real world? In the real world. 12 Dec. Huff. The amount of time and resources the defense attorneys have depends on what the state gives them. you get probation. They'll then advise the defendant." Defense attorneys advise the clients based on very little information. and they have very limited resources in which to conduct investigations. foundationbriefs. That's the ideal world. On the other hand. They're somewhat at the mercy of prosecutors for the information that they have. American Bar Association." Prosecutors say "Here's the offer: If you plead guilty. Frontline. which could be very little. It's really pretty much "take it or leave it. This is what you risk if you go to trial.g. 2004. which includes the area covering Detroit. about how credible the evidence is and be able to make a reasoned decision about what are the risks." Criminal Justice Magazine 18. you get three years. the way you might negotiate it if you were buying something in the market.. Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham University.com Page 33 of 70 . unscrupulous defense attorneys (we call them "guilty plea wholesalers") can earn a considerable income by lining up a large number of cases and pleading their clients guilty without adequate investigation." And that's pretty much it. And often the clients have to decide these things within a very short amount of time. 14 Dec. 2010. Web.
you have to learn what the case is against the defendant. PBS: Public Broadcasting Service. that I'll be convicted versus acquitted? Most defense attorneys don't have the resources to do that. Web. 2004. if you were able to film guilty pleas taking place. 16 Jan. defense lawyers do next to no investigation. 2010. Now that suggests that if you're a defense lawyer. … A judge can resolve many.January 2010 Pro: Poor Legal Representation Green. PBS: Public Broadcasting Service." Interview. Frontline. You have to conduct an investigation in order to give the client an ability to know what the risks are if you go to trial -. 2010. Plea bargains -. They have to advise their clients about the decisions their clients have to make. "The Plea: Interview Jonathan Oberman. 12 Dec. many cases.com Page 34 of 70 . they present the plea offer to their clients and they let the client make a decision. Frontline.how likely is it. foundationbriefs. frequently resolved by way of guilty plea within 90 to 120 seconds. and enable their clients to make informed decisions. 50 cases in the course of a court day. "The Plea: Interview Bruce Green. 12 Dec. 25. Oberman. Jonathan. From the defense attorney's side. it's also troublesome because the standards of the legal profession say that lawyers have to represent their clients competently and diligently. really. 16 Jan. Web. and on low-level cases.If you go into court. they take whatever information the prosecutor gives them. you'd be shocked to see that a case can be called before a judge. Bruce. 2004. In the overwhelming majority of cases." Interview. as opposed to having that entire day consumed with witness testimony on a single trial.
you know it. Albert . to find a way to get the defendant to enter a plea agreement. 2010. and the way to do that is not to try cases. 12 Dec. Bruce .January 2010 Pro: Conflict of Interests Conflict of Interests Alschuler. who get rich by handling a large volume of cases for low fees. Your client may not be around later to pay you. So when they walk in. whenever. and everybody knows it. 16 Jan. in the 10 years that I've seen her or him. 16 Jan. The usual way of collecting a fee in a criminal case is to be paid a lump sump in advance. "The Plea: Interview Albert Alschuler. but to plead defendants guilty. Web." Interview. today. Albert Alschuler is a professor of law and criminology at the University of Chicago. PBS: Public Broadcasting Service. so you can't just send him a bill for the number of hours you have spent. you're never going to trial. Once the lawyer has pocketed his fee. The plea bargain system is rife with conflicts of interest for both private lawyers and appointed lawyers. Frontline. There are lawyers who practice in every courthouse in the country who don't try cases. Barket. tomorrow. it's obviously to his economic advantage to plead the defendant guilty. Frontline. 2004. 2004. 12 Dec. I know it. I don't think they're starting with this one."… This is ultimately extremely damaging to the clients foundationbriefs. Web. and this lawyer. except for the clients. because we've been around for five or 10 years. Here's the offer. There are lawyers throughout America who virtually never try a case. if you're a prosecutor you look over and you say. 2010. take it.com Page 35 of 70 ." Interview. "The Plea: Interview Bruce Barket. PBS: Public Broadcasting Service. don't take it. "You're not trying that case. hasn't tried one case.
instead of allowing juries to air and wrestle with the hard. they avert public scrutiny of police interrogation tactics. so prosecutors have incentives to take to trial only extremely strong cases and to bargain away weak ones. In weak cases. prosecutors bargain away most cases involving dubious confessions. 10-11) foundationbriefs. We're concerned about each person. Bibas. the parties have imperfect information about the cases’ weaknesses. If they buy off credible claims of innocence cheaply. Print. "most" isn't the way we do business in a free society that cares about individual rights and individual liberty. the defense counsel can not take every case to trial. They may push strong or high-profile cases to trial to gain reputation and marketable experience. In other words." Interview. that's also something which disserves the public interest. I think most people who are prosecuted of serious crimes are guilty of at least what they're charged with and ought to have serious criminal sanctions attached. 117. In the public defender system the defense counsel is representing a hundred other people. they cover up faulty investigations that mistakenly target innocent suspects. in short. Trial shadows in these cases may be fuzzy enough that the parties can disagree in predicting trial outcomes. 2010. and the trouble with plea bargaining is it places tremendous pressure on every defendant to waive the right to adjudication. Vol. They're paid by the case and therefore. predicts that most trials should involve weak cases. By pressing the easiest cases.January 2010 Pro: Conflict of Interests Langbein. while weak cases have genuine disputes that merit resolution at trial. 2004. I'm not in favor of all defendants walking around on the street free. it's in their interest to take as many customers as they can. in contrast. Plea Bargaining Outside the Shadow of Trial. So there's no particular reason to think that defense counsel is any serious answer to the intrinsically coercive nature of plea bargaining. Harvard Law Review. The shadow-of-trial model. 2004. prosecutors turn jury trials into rubber stamps or mere formalities. PBS: Public Broadcasting Service. so to speak. prosecutors may hide them from view. the caseload pressures force the defense counsel to decide which of the cases he's going to take to trial and which not. "The Plea: Interview John Langbein. Defense counsel in some circumstances is not very competent and is delighted simply to take his money and run. But the problem is. Stephanos. in the sense that the defendant gets to walk. To the extent that defense counsel does in fact negotiate a better deal than one could get in the ordinary outcome of trial. Losses at trial hurt prosecutors’ public images. 8th ed. while they can make irresistible offers in weak cases. Self-interest. 16 Jan. and as a result bargaining may break down.com Page 36 of 70 . represent to them that they're getting them a great deal and in fact not do very much for them. Thus. This dynamic is the opposite of what one might expect: strong cases should plead guilty because trial is hopeless. troubling cases. the shadows of trials in strong cases are so clear and crisp that the shadow-of-trial model predicts settlement. Prosecutors can discourage defendants in strong cases from pleading guilty by refusing to make any concessions. If. Rep. pushes prosecutors toward trying the strongest cases. 12 Dec. John. Web. Some of the compensation arrangements for defense counsel are quite perverse. however. (Pg. for example. Frontline.
16 Jan. 2004. I think if plea bargaining did not exist. The main winner in the plea bargaining process is the prosecutor. So I believe that by far the worst failure in the plea bargaining system is the prosecutor. [deciding] whether or not in his or her judgment you're guilty or not. What has happened is that a single officer. There's not a lot you can do when the other guy has all the chips. foundationbriefs. but they have very serious caseload problems of their own. "The Plea: Interview John Langbein. take the proofs to trial and see to it that there's a genuine adjudication. and then basically sentencing you. and indeed a somewhat dangerous officer. Jonathan. I describe plea bargaining as a system of prosecutorial tyranny. charging -. "The Plea: Interview Jonathan Oberman.that is. 12 Dec. a judge. has complete power over the fate of the criminal accused. … It's a lot easier to coerce somebody into waiving all his defenses than to actually investigate the case thoroughly. is dispersed across prosecutor. They also are subject to the ordinary human frailties. You have to understand the perverse incentives that operate on prosecutors. what we have now is a system in which one officer.com Page 37 of 70 . because the catch-all. jury. It's much easier to threaten some poor devil until he consents. PBS: Public Broadcasting Service. 2004. 2010. Frontline. because the prosecutor can threaten ever larger sanctions if you don't do what he wants. It's hard work to try a case. now is in charge of investigating.January 2010 Pro: Efficiency Argument Insufficient Disproportionate Power to Prosecutors Langbein. I'd be more comfortable if fewer cases were resolved by way of plea. I think they'd have to access the strength and weaknesses of various witnesses much more searchingly. which is one in which the power." Interview. to inflict criminal sanctions on an accused. the prosecutor. it would require prosecutors to exercise discretion more intelligently. the escape hatch of plea bargaining doesn't exist. sentencing professionals -. Some of them are lazy. PBS: Public Broadcasting Service. bringing formal charges -. evaluating that evidence.instead of all that. I think they would have to charge cases more carefully. And the prosecutor has an awesome pile of chips in our plea bargaining system. Many of them are noble.deciding whether to prosecute. Frontline." Interview. the prosecutor. 16 Jan. witnesses. Oberman. 2010. So that in place of a system which our constitutions have all devised. the awful power. Web. and I think that's in part because the prosecutor is not always as noble as he would like you to believe he is. 12 Dec. Web. John. I think defense counsel is to some extent at the mercy of a bad system. high-minded people.
So I think that the sentences given to defendants who plead guilty are probably about what they would be in a system without any plea bargaining at all. "Hey. One offender says." Another defendant says. but only if you cooperate with me. Albert .January 2010 Pro: Stronger Charges and Punishment Stronger Charges and Punishment Alschuler. 16 Jan. I can protect you from that bad old sentencing commission. but he ain't nothing. Albert Alschuler is a professor of law and criminology at the University of Chicago. "The Plea: Interview Albert Alschuler." Interview. or are the sentences designed with the plea bargaining system in mind? I think that the sentences are probably designed with the plea bargaining system in mind. 2010. Judges don't sentence defendants in America today. 2004. But the overwhelming majority of defenders plead guilty. foundationbriefs. And the tougher the sentences that are threatened after trial. We have sentencing guidelines that are very tough. Guilty pleas have increased in recent years partly because sentences have become so draconian." and that's the truth in American criminal justice system.com Page 38 of 70 . Web. Which comes first. You don't want to give inadequate sentences to the vast majority of offenders. and it's like a good cop/bad cop strategy for police interrogation. The head of the show is the prosecutor. 12 Dec. We're going to be really tough. "You know. I don't know that it's a conscious. The sentencing commission is the bad cop. Frontline. We've imposed these guidelines because we don't trust judges. and the prosecutor then becomes the good cop. the prosecutor is the man who gives you the time. We now have mandatory minimum sentences. calculated process." So you get tremendous leverage. We don't think the judges will exercise discretion properly. PBS: Public Broadcasting Service. the tough sentences. He's supposed to be the head of the show. "You know. the judge is just put up there. the more leverage the prosecutor has to induce a plea of guilty. But all we've done is transfer the discretion from the judge to the prosecutor.
increase the trial penalty from 300% to 333%). For example. In other words. crude discount regardless of fine differences in guilt and proof. federal law prescribes five. however. however. A 10% discount resulting from a charge reduction. Vol. In most cases. is the wrong comparison. they could tailor bargains to reflect both the severity of the crime and the strength of the evidence. mandatory penalties create cliffs instead of smooth slopes.and ten-year minima for certain drug and gun crimes. All too often. Although it is quite difficult to estimate the typical additional discount resulting from such charge reductions. as mentioned above. sentencing guidelines and statutes act as sledgehammers rather than scalpels.com Page 39 of 70 . Plea Bargaining Outside the Shadow of Trial. Rep. Stephanos. Print. Neither calibrates punishment to the strength of the evidence. Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining. foundationbriefs. To calculate the actual plea discount in any particular case. and the median sentence following jury trial conviction at 120 months. depends not only on raw sentence differentials but also on the amount and type of charge dismissal and movement that accompanies typical plea bargains. Rep. The federal and many state systems have replaced indeterminate sentencing with sentencing guidelines and have adopted mandatory minimum sentences by statute. by pleading guilty a defendant not only bargains for the opportunity to receive a more lenient sentence for the offense of conviction. Russel. discrete chunks. An accurate estimate of the operative trial penalty. which are packaged in large. a 292% trial penalty. 2000. Print. that additional discount need not itself be large to have large effects. therefore. 2004. but he also receives the opportunity to plead guilty to a less serious charge carrying a less onerous penalty. one must compare the sentence imposed on the lesser charge to which the defendant pleaded guilty with the sentence that would have been imposed after conviction on potentially higher charges at trial. Harvard Law Review. State sentencing statistics for 2002 show the median sentence for all felony cases adjudicated by guilty pleas to be 36 months. The mean statistics are similar: 52 months for guilty pleas. would magnify the average 300% trial penalty by 33% (that is. These cases are the worst ones where the prosecutor cannot accept a deal But large as they are. Georgia State University. 8th ed. (Pg. The result is that many defendants reap the same. If the parties had precision sentencing tools. Both guidelines and mandatory statutory penalties turn on the severity of the offense or the offender’s criminal record. and 140 months for jury trials. That. This is particularly true of statutory minima and maxima. these figures fail to capture the actual trial penalties at work because they compare only outcome disparities between guilty pleas and trials for the same offense of conviction. 25) Covey. a 333% trial penalty.January 2010 Pro: Stronger Charges and Punishment Bibas. 117. while a 50% reduction would double the penalty to 600% (and the "high-end" penalties to 1000% or more). for example.
But our courts have such a large volume of cases and so little resources has been devoted to providing representation to people accused of crimes. … One of the reasons that so many people plead guilty is because they really don't have legal representation. because they're only going to be dealing with this person for five or 10. "The Plea: Interview Stephen Bright. yes" to all the questions and the judge says.January 2010 Pro: Guilty Plea Guaranteed System Guarantees a Guilty Plea Bright. 12 Dec. I find that this is a knowing. conclusory questions. PBS: Public Broadcasting Service. 15 minutes. and then the case is over. the client probably didn't even understand the process they just went through. … foundationbriefs. The other thing is. "Yes. Stephen. A high school student could do that. So everyone answers. That's just a clerical function that the lawyers are providing. You don't need a lawyer for that. that's not legal representation. if you're in a court that's taking pleas all day. voluntary plea. They're asked leading. where the answer is obvious. 16 Jan. Everyone knows the answers to the questions and everyone knows that if you answer the questions incorrectly. … It's not unusual for lawyers who handle a high volume of cases to not know their clients' names or know anything about them. 2004. 2010. It's just a ritual that everyone goes through. they plead guilty and are sentenced. yes. all the defendants who are there sitting in the audience see other people pleading guilty. Because when a lawyer meets somebody in court." The fact is. Web. "Well.com Page 40 of 70 . The way in which judges accept guilty pleas is done in a way that almost insures that people are going to plead guilty." Interview. They're just dealing with such a high volume of cases. Frontline. intelligent. Professor of law at Yale and Harvard Universities and director of the Southern Center for Human Rights. the whole thing will blow up and the judge will yell at you and you might not get the bargain that you're going to get. they don't even keep files on the cases. I go to courtrooms all the time where you see the defense lawyers coming and they'll stand up in the front of the courtroom and call the names of their clients because they don't know who the clients are and ask them to raise their hand. talks to them for five minutes. that this sort of fast food justice is what we've ended up with.
PBS: Public Broadcasting Service. Bruce. 2010. "No. the lawyer prepares them for those questions. "The Plea: Interview Bruce Green. "Are you satisfied with your lawyer? Did your lawyer do a good job?" And defendants are not likely to say." Interview. yes. the reality is nobody literally puts a gun to the defendant's head. Frontline." Now. you know. "I'm entering this plea voluntarily.com Page 41 of 70 . 16 Jan. Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham University. understanding what the charges are." You know what the required answer is supposed to be. And of course the defendants might not know what. But the judge has to be sure the defendant is pleading willingly and truthfully. I'm not happy with my lawyer. the defense attorney would be doing anyway. doesn't he? Well. there's a required sort of litany that the judge goes through: Are you on drugs? Has anyone put a gun to your head? Do you understand the charges? And so forth. But the reality is if the defendant wants to take the plea. The gun is really the high penalty that they face if they were to go to trial and be convicted. judge. Web. So it's a little act put on for the judge. in an ideal world.January 2010 Pro: Guilty Plea Guaranteed Green. foundationbriefs. And so whether you feel there's a gun to your head or not. 2004. you're going to say. It's a little act. One of the questions that defendants are often asked is. 12 Dec.
in other cases. Web. the employer is there. The minister's there. A presentation is made about why this person ought to get a particular sentence. 12 Dec. (Pg. incapacitation. plea bargaining adds another layer of distortions that warp the fair allocation of punishment. These structural distortions produce inequities. "The Plea: Interview Stephen Bright. 117. bargains reflect much more than just the merits. or rehabilitation. (Pg. 8th ed. 2004. it's a completely different system. the effects are more idiosyncratic. It's different if the defendant has money? For people that have money." Interview. education.January 2010 Pro: System is Biased System is Biased Bright. Either way. And then the case comes along where somebody's represented by a lawyer who's paid and their case is completely different. Stephen. 6) Plea bargains do not simply reflect expected trial outcomes minus some proportional discount. Rep. age. Plea Bargaining Outside the Shadow of Trial. Though trials allocate punishment imperfectly. You often see that in court. and confidence. sex. 16 Jan. where you'll see all these people herded through the system represented by a court-appointed lawyer just plea after plea after plea. The person is dressed up with a coat and tie on. 2010. why the case ought to be reduced to a lower crime than what's accused. Harvard Law Review.com Page 42 of 70 . Frontline. 2004. retribution. Many other structural factors influence bargains. Sometimes these factors help or hurt certain classes of defendants. intelligence. PBS: Public Broadcasting Service. It's a completely different kind of justice… Bibas. Stephanos. Professor of law at Yale and Harvard Universities and director of the Southern Center for Human Rights. Rather than basing sentences on the need for deterrence. the parents are there. overpunishing some defendants and underpunishing others based on wealth and other legally irrelevant characteristics. Vol. Print. 7-8) foundationbriefs. plea bargaining effectively bases sentences in part on wealth.
And when you combine pretrial detention with the prosecutor's power to threaten much worse sanctions if you don't confess and bear false witness against yourself -. and these people are particularly likely to yield to the demand that they confess whatever it is they're being charged with rather than wait for some kind of trial. "The Plea: Interview John Langbein. 2004. Web. Most of the people caught up in a criminal justice system. are people who are poor. and confess to things they didn't do. PBS: Public Broadcasting Service. That is to say most people [in the system] are too poor to afford bail.January 2010 Pro: System is Biased Langbein. and therefore there is a very evil interaction of prosecutorial power with poverty." Interview. The simple truth is there are not a lot of Rockefellers in jail for sticking up 7-Eleven stores or drug busts or whatever. John. Frontline. 16 Jan. for all sorts of sad reasons. … foundationbriefs. Prosecutorial power in the plea bargaining process often turns on pretrial detention.many people caught in that trap basically have no choice but to bear false witness against themselves. because they'll be sitting in jail for months and months and months.com Page 43 of 70 . with indigence. 12 Dec. 2010.
Professor of law at Yale and Harvard Universities and director of the Southern Center for Human Rights." Interview.November 2010 Pro: Probation Funnels People to Bad Probation System Bright.com Page 44 of 70 . 2004. Web. At one time probation officers worked for the state and their goal was to help deal with whatever problem got this person into the criminal justice system. and then maybe conducting classes and charging for those classes. 16 Jan. So in the short term it looks great to the person. or some fee depending on where they are. What they usually don't take into account is that they're being set up to fail. They'll be fined. 2010. The hope a lot of times is that the family will somehow mortgage the house. They may be told they have to go to classes. because the Supreme Court of the United States has said you can't lock people up just simply because they can't afford to pay. foundationbriefs. because of their poverty and their financial inability to pay. A lot defendants who plead guilty end up on probation. At the time they come back in because they haven't paid. 12 Dec." And slam. Stephen. do something to come up with the money so that the person can get back out on the streets again. sell the car. One reason that a lot of people plead guilty is because they're told they can go home that day because they'll get probation. It's just a question of. they really don't have any serious hope of meeting. All of that is generating income for this company. but it probably is not dealing with whatever behavior brought the person into the court. probably. So before long they're going to be behind in their payments and then they probably won't go to see the probation officer because they don't have the money that they're supposed to pay and then a warrant is issued for their arrest and then they're sent to prison for violating their probation. "You owed this much money and you didn't pay it. but the courts never inquire into that. Now in lots of places we have private probation companies. or maybe every two weeks. Who pays for that? Unfortunately. what they can afford to pay. They're going to be told to report every month to a probation officer. They're not going to be told. PBS: Public Broadcasting Service. or renting out ankle bracelets that monitor the person's movements and so forth. what they haven't realized is that now there are all these responsibilities that they have. They probably aren't told that that's going to cost them $40. which basically are just for-profit businesses. off you go to jail. there's no inquiry into how much money they make. "The Plea: Interview Stephen Bright. charging people to be on probation. Frontline. which are collecting fees from people every time they come by and meet a probation officer. which. too often it's paid for by the defendants. and more likely than not the fine will be more than they can afford. that they have to pay for those classes every time they go. that some other emergency in the family kept them from making the payment. and illegally. in most courts there's no hearing to find out that the baby had to go to the hospital and somebody lost their job. Why do they have to pay? It's a relatively recent phenomenon. At the time people are put on probation. every time they come. But we're really running debtor's prisons as a result of this because a lot of families can't come up with the money.
com Page 45 of 70 .Con Evidence foundationbriefs.
Some jurisdictions have developed safeguards and guidelines to prevent violations of due process and to ensure that innocent defendants do not plead guilty under coercion. and fair dispositional process. 2008. CA: Thomson/Wadsworth. Belmont.com Page 46 of 70 . The prosecution can devote more time to more serious cases. Larry J. The administrative efficiency of the courts is greatly improved.January 2010 Con: General General Siegel. Print. Senna. Resources can lie devoted more efficiently to cases that riced greater attention In recent years. Proponents of plea bargaining contend that the practice ensures the flow of guilty pleas essential to administration efficiency. The defendant avoids possible detention and an extended trial and may receive a reduced sentence. and Joseph J. Proponents contend that plea bargaining benefits both the state and the defendant in the following ways: • • • • • The overall costs of the criminal prosecution are reduced. Such safeguards include the following: • • • • • • • Uniform plea practice Time limits on plea negotiations Presence of defense counsel to advise defendant Open discussions about the plea between prosecutor and defense attorney Full information regarding offender and offense Judicial questioning of defendant before accepting the plea Judicial supervision of the plea foundationbriefs. Introduction to Criminal Justice.. It allows the system the flexibility to individualize justice and inspires respect for the system because it is associated with certain and prompt punishment. efforts have been made to convert plea bargaining into a more visible. understandable.
Judging from the available evidence. Radelet. Do you believe many innocent people plead. and Putnam list sixteen cases of innocent homicide defendants who pled guilty.to make sure it's done in accordance with the rules. Lost Lives: Miscarriages of Justice in Capital Cases. Frontline. PBS: Public Broadcasting Service. and I wish there weren't. I won't accept that plea bargain. I really don't. But the great majority of them. 61." Interview. I can tell from his or her response to me. fear of execution is given explicitly as the reason for the plea. are guilty. another illustration of how death is different. Gross. 2003. 1998. I'm sure. 4th ed. 8 Dec. 2010.. I go through all the admonishments. and I have to be convinced. There's no question about it. Michael. foundationbriefs. Web. That's. no doubt.. Law and Contemporary Problems. I think most people that come in here that plead guilty are guilty. Print. you go into a question/answer with the defendant. the responsibility of the judge -.com Page 47 of 70 . there are some. It's a very long litany. "The Plea: Interview Judge Michael McSpadden.a long pause. but some will not go so far as to risk death. Rep. 16 Dec. Vol. The court does not accept that plea bargain. again. If the court does feel that it's not appropriate. in most. or plead no contest? No. If I feel at any time that someone is being forced in any way to plead.and sometimes you get a feeling -. [that] the person is being pressured in any way -. innocent defendants almost never plead guilty when doing so entails a substantial term of imprisonment—except in capital prosecutions.January 2010 Con: Innocents do not Plead Guilty Innocents Do Not Plead Guilty McSpadden. Sure. Bedau. It seems that innocent defendants will almost always risk additional years of their lives in order to seek vindication rather than accept disgrace coupled with a long term of imprisonment. Samuel R. . This is.
Howard E. There just aren't enough courts to try these cases before a jury because the of number of cases. 2010.… Covey. Michael. 13 Dec. Russell D. 2009.If we had an ideal situation.January 2010 Con: Plea Bargains Necessary Plea Bargains Absolutely Necessary McSpadden. Print. as seems more likely. <http://law. where every case that came in was tried before a jury who speaks for our community. Rep. Web. (Pg. foundationbriefs. Signaling and Plea Bargaining's Innocence Problem. 2003.wlu. our criminal justice resources would be exhausted…. the quality and accuracy of trial outcomes would decrease if there were a substantial increase in the number of cases tried. Frontline." Interview. mainly because the great number of cases we deal with -. The abolition of plea bargaining would therefore result in more innocent persons being wrongfully convicted and sentenced to harsher average sentences. Rep. PBS: Public Broadcasting Service. I look at it as a necessary component in our criminal justice system. 16 Dec. 84) Abrams. Journal of Criminal Law and Criminology. we would be sending these cases for 10 years down the road to be tried. Washington and Lee University. Web.com Page 48 of 70 . then the accuracy of convictions in a regime of universal trials would likely be substantially diminished. Systemic Coercion: Unconstitutional Conditions in the Criminal Law.pdf> If. 8 Dec. 2010. 1981. "The Plea: Interview Judge Michael McSpadden.edu/deptimages/Law%20Review/661CoveyPublished. Recent decisions have constitutionalized and expanded the rights of criminal defendants to the point where if one in five defendants demanded all such rights.
edu/mstevens/410/410lect24. As such. One of our constitutional rights as Americans is the right to a speedy and public trial. it must be provided to him unless he explicitly declines it. 15 Dec. <http://faculty. the criminal justice system would collapse if everyone were to demand their right to a jury trial be upheld. 2010.com Page 49 of 70 .January 2010 Con: Plea Bargains Necessary Only way to Uphold 6th Amendment "Overview of 6th Amendment Rights. even years. In this collapse." NCWC: Faculty Pages. While this right can be waived by a defendant. thus violating their constitutional rights. we would see people being forced to wait months. plea bargains are absolutely necessary and indeed beneficial in the quest to uphold all constitutional rights. foundationbriefs. Web. to have their cases heard. given the current level of judicial resources.htm>.ncwc. As mentioned in the above evidence.
there were 219· active criminal cases on the dockets of the two courts." UCLA Law Review 35. the caseload had grown to a size that made it almost impossible to manage. Multiple regression analysis reveals that guilty plea defendants received shorter prison terms than jury trial defendants. Web. the judges provided direct assurances of sentences to defendants if they pleaded guilty. By late October 1978. It should surprise no one that a system which provided so much adjudication would have serious drawbacks. 2010. 15 Dec. The crisis was deepened by concern over whether there could be compliance with the requirements of the state's newly enacted Speedy Trial Act (277-278) This Article shows that even though sentence negotiation and charge bargaining were virtually eliminated. On December 31. they had been able to steadily reduce their dockets during the two-year period before plea bargaining was abolished.62 . "THE ABOLITION OF PLEA BARGAINING: A CASE STUDY OF EL PASO COUNTY. (295) foundationbriefs. It also shows that another implicit but important form of plea bargaining remained-a sentence differential between defendants who pleaded guilty and those who were convicted at trial. Previously.265 (1988): 265-314. at the beginning of the prohibition. the two judges had been able to keep up with their caseloads.60 But after the ban went into effect. 1975. Complaints over delays in court were heard from both civil and criminal lawyers. case processing time increased substantially61 and a backlog of cases quickly accumulated.com Page 50 of 70 . In fact. there were 767 active criminal cases-an increase of 250 percent in less than three years.January 2010 Con: System Struggles Systems Struggle without Plea Bargaining Weninger. Even with the help the two criminal judges received from the civil judges. TEXAS. Robert. when plea bargaining was practiced.
I think plea bargaining is an invaluable part of our system. 2010. You go into a store and you shoplift. you could go to jail for four years. they were goading you on. it was a completely stupid and aberrational act on your behalf. Suppose you're someone who." Interview. It tempers justice with mercy. maybe you're doing it as a stunt. We think that.January 2010 Con: Proportionality Allows for Proportionality Barket. You'll pay a small fine. Web. I think there's a lot good about it. You're not going to go to jail. PBS: Public Broadcasting Service. 16 Jan. 2004. or maybe even to a lesser offense than a misdemeanor. Frontline. 12 Dec. That wouldn't be possible if it weren't for plea bargaining. Whatever you're doing. a fair result is we'll reduce it to a misdemeanor. You lose your right to vote.you were with friends. "The Plea: Interview Bruce Barket. in this particular case.com Page 51 of 70 . and you'll go on with your life. you'll do some probation. "You know what? We don't think a felony is the just result to ruining the rest of your life with it. you have trouble becoming an attorney or getting other professional licenses. for whatever reason that day -. if you will. just a plain offense. Let's say you steal something that's $1. If you want to vote. Prosecutor looks at that and says. for example. which makes you guilty of a felony. foundationbriefs.010 in New York. There are times when somebody is guilty -. and that's a fair and just result." If you want to get a license you can. you can't get a job. Bruce .a petty larceny. you can.
(Pg. While most juries will acquit the defendant. “It is hard to see how a process of mandatory rounding is necessary for a morally healthy society.87 Judge Easterbrook presented this argument as follows. he could plead guilty in exchange for a two-year imprisonment term instead of ten. Easterbrook appears to assume that this is a better result than a dismissal of that case. The probability that the defendant is factually guilty can be somewhere between 50% and 99. 27. say. on the other hand. 90%. 5th ed. Partial Ban on Plea Bargains.January 2010 Con: Proportionality Gazal-Ayal. as reflected by the evidence available to the prosecutor. In order to see how plea bargains in weak cases achieve that goal.com Page 52 of 70 . The defendant is thus likely to be acquitted. the defendant might be willing to plead guilty if he is offered a greatly discounted sentence. it is rounded up to 100%. take the following example. For example. result in a sentence that reflects the probability much more accurately. In other words. which reflects the standard of beyond reasonable doubt.88 In a trial. Some scholars assert that settlements in borderline cases are morally superior to trial results. 29-30) foundationbriefs. If the probability of guilt is higher than 90%. if it is lower than 90%. Cardozo Law Review. Thus. some could find him guilty. Consider a defendant who faces charges that. plea bargains allow the sentence to reflect the weakness of the case. but also to the probability that the defendant is guilty. That means a reasonable doubt exists assuming. a sentence should be correlated not only to the severity of the offense. will lead to a sentence of ten years of imprisonment. 2008. if proven at trial. Oren. this case is weak. is. even though the case is weak. Print. Rep. The burden of proof at trial. In this way.9%. like Easterbrook does. that a probability of 90% reflects the “beyond reasonable doubt” standard. Plea bargains.” According to Easterbrook. it is rounded to 0%. However. the jury tries to analyze the evidence and estimate the probability that the defendant is guilty. Vol. is 80%. both parties know that the results of jury trials are not certain. Assume that the probability that the defendant is guilty.
"The Plea: Interview Bruce Green. Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham University.com Page 53 of 70 . Imagine if in all these cases. 12 Dec." Interview. it's in everybody's interest to do that. And in all these cases. Web. the victims and witnesses had to come to court to testify.January 2010 Con: Better Overall Better for the System and Society Green. It also is in some ways fairer to witnesses and prospective jurors. So from the state's point of view. Bruce. especially someone who's clearly guilty. if you have someone. 2004. foundationbriefs. PBS: Public Broadcasting Service. people had to leave their jobs in order to serve on juries. 2010. Frontline. That would be very onerous for the public. I think the main benefit of the plea bargaining process from the state's point of view is it saves a lot of money and resources. 16 Jan. and you could get them to plead guilty by offering them an inducement.
13 Dec. and innocent persons are sometimes convicted. 2009. Washington and Lee University. Web. Russell D. It is precisely because trials are flawed. that innocent defendants might rationally perceive pleading guilty to be the utility maximizing option. If trials perfectly separated guilty defendants from innocent defendants. they [plea bargaining’s defendants] point out that the innocence problem is not unique to plea bargaining but rather is a necessary consequence of imperfect trials. no innocent defendant would plead guilty (at least as long as the process costs of trial did not exceed the costs of conviction) because every innocent defendant would go to trial and be acquitted.wlu. Rep. (Pg.edu/deptimages/Law%20Review/661CoveyPublished. 80-81) foundationbriefs.pdf> First. <http://law.com Page 54 of 70 .January 2010 Con: Better Than Trials Pleas are better than Flawed Trials Covey. Signaling and Plea Bargaining's Innocence Problem. 2010.
the innocent defendant might prefer the more lenient outcome that results from a guilty plea. Partial Ban on Plea Bargains. Defendants can opt for a lower sentence than the one they risk at trial. Cardozo Law Review. 2009. 13) foundationbriefs. Prohibiting plea bargaining for the innocent defendant forces him to face the high risk of a jury trial conviction. (Pg. because the defendant can always opt for a trial. 13 Dec. Web.edu/deptimages/Law%20Review/661CoveyPublished.com Page 55 of 70 . Washington and Lee University. Of course. prosecutors assure convictions and are able to prosecute more defendants. 8) Proponents of the plea bargaining system do not question the fact that sometimes innocent defendants plead guilty.34 One should not prevent innocent defendants from buying this type of insurance against a wrongful conviction at trial. even innocent defendants are better off with plea bargaining.35 In other words.pdf> The charge that plea bargaining is unfair or unduly coercive is challenged by the observation that both prosecutors and defendants prefer plea bargaining. Plea agreements thus serve as a type of insurance. (Pg. 2008. and the public benefits from an effective criminal justice system at a reasonable cost.wlu. 80-81) Gazal-Ayal. however. Even in this case. 5th ed. 27. (Pg. Rep. than they would be without it. it is argued. <http://law. Rep. The prosecutor might gather evidence that could lead to his wrongful conviction in a jury trial. (Pg. the Supreme Court and various scholars have praised plea bargaining as a process that benefits all participants in the criminal justice system as well as the public. But since he would have chosen the plea bargain. Vol. forcing the innocent defendant to go to trial would be against his best interests. 2010. Their common reply is that forbidding plea bargaining would only make defendants’ situations worse. In such a case. the innocent defendant can always choose the lesser evil between pleading guilty and gambling on a jury trial. if either party believed that the bargain was not beneficial. Print. supporters note—they are only an option. Signaling and Plea Bargaining's Innocence Problem. Russell D. he may decide he is better off pleading guilty to an offense he did not commit. Notwithstanding the fact that some innocent defendants are induced to plead guilty as a result of the plea pricing mechanism. one could fairly assume that he thinks that the risk of a guilty verdict at trial is too high. Eliminating one of these admittedly grave options can only harm him. Oren.January 2010 Con: Preferred by Parties All Parties Prefer Plea Bargaining Covey. Innocent defendants are likely to reject this option because they expect an acquittal at trial. it could simply decline it and go to trial. After all. Plea agreements are not forced on defendants.33 When a defendant takes into account the probability of being falsely convicted and the severity of the post-trial sentence. Trials are not perfect and defendants can be wrongly convicted in trials as well. sometimes even an innocent defendant faces a risk of conviction. plea bargaining is the least aggravating alternative. Thus. 4) Relying on the consensual nature of the practice.
Ronald.January 2010 Con: Insurance Acts as Insurance Huff. In that experiment. Why would someone plead guilty to a crime he or she did not commit? An earlier social psychological experiment offered important insight into this question. American Bar Association. it was shown that innocent "defendants" were more likely to accept plea bargains when they faced a number of charges or when the probable severity of punishment was great. many defendants can be enticed to plead guilty. "Wrongful Conviction: Causes and Public Policy Issues. Web.1 (Spring 2003). foundationbriefs.com Page 56 of 70 ." Criminal Justice Magazine 18. in order to avoid even more severe consequences of systemic error. 14 Dec. 2010. Since the outcome of a legal case is never certain. even though they are innocent.
com Page 57 of 70 .Contentions foundationbriefs.
Increases wrongful convictions The practice of plea bargaining is a carefully constructed system of incentives and coercion meant to ensure that people charged with a crime bend to the will of the prosecution. and they do this because plea bargains guarantee high conviction rates and a good reputation for the prosecutor. We seek to punish the guilty but even more so stop innocent people from being convicted (thus the “beyond a reasonable doubt clause”). The criminal justice system is not perfect. and defense lawyers all benefit from plea bargaining and therefore strongly discourage exercising the right to trial. allowing them greater freedom in their judge calendar. Punishes exercise of Constitutional rights The Sixth Amendment to the United States Constitution guarantees the right of an accused to a speedy trial with a jury of his peers. the more money they make. So. defense lawyers pressure their clients to accept plea bargains because of financial incentives.com Page 58 of 70 . the more cases they take on. Thus. judges pressure defense lawyers to force their clients into accepting plea bargains by informing the lawyer that the judge will impose a maximum sentence if the defendant goes to trial. This is unfair to the defendant.November 2010 Contentions: Pro Pro Contentions 1. the FBI admits that roughly 25% of prime suspects would be cleared of the crime they were charged with if DNA evidence was available. 2. Prosecutors punish the right to trial by lobbying for greater sentences. prosecutors have become complacent in the face of justice. every time we convict an innocent person we leave the actual offender free to continue victimizing citizens. If a case goes to trial. many defense lawyers will end up making less than a dollar an hour. Finally. This is because the disparity between punishments by plea bargaining and trials are tremendous. it is easy to rationalize that taking a plea bargain for 7 years in prison is better than risking an entire life in prison. judges. Plea bargaining especially undermines the criminal justice system because it destroys a fundamental principle in our society. they encourage clients to take a plea bargain because they can quickly move through cases. prosecutors can charge an individual loosely-related to the crime and rely on plea bargaining to ensure a conviction. ranging from a 333% increase to a 500% increase. when plea bargaining ensures everyone in the system is discouraging him from exercising his rights. This is because prosecutors. With over 95% of criminal cases being decided by a plea bargain. But plea bargaining achieves neither. punishes an accused for simply wanting to exercise a right. Rather than a careful screening process of suspects. Thus. Judges are in favor of plea bargains because it moves the court docket quickly. foundationbriefs. Generally. through use of coercive tactics. when an innocent person is confronted with a criminal charge. As such. these lawyers are not paid hourly but instead on a flat rate per case. Plea bargaining.
police investigations do not need to be thorough. courts give little attention to the actual investigation of the crime. foundationbriefs. and no real investigation is done to examine the truth of the crime. This harms the defendant especially because a Supreme Court ruling in 2002 allows prosecutors to hide faulty evidence from the defense. Because no trial takes place. However. the crime is never really investigated.Hides the truth The core of the criminal justice system is transparency to the community. and a public trial never occurs. plea bargaining undermines this principle because it is a private ordeal.January 2010 Contentions:Pro 3. Most plea bargains happen in as little as five minutes. Especially with poor defendants that have a public defender.com Page 59 of 70 . Trials are meant to be open because the public has a right to know what crimes are committed in the community and juries are supposed to reflect the community as a whole. plea bargaining definitely undermines this justice. Essentially. Because the criminal justice system has a goal of obtaining the truth of the crime. when plea bargaining occurs. the prosecutor controls all of the information given to a defendant and his lawyer.
in Illinois many death row inmates were later proven innocent of their crime because of DNA evidence. During this long term. and as such plea bargaining can allow prosecutors to adapt charges (for instance.November 2010 Contentions: Con Con Contentions 1. While they are still punished. foundationbriefs. Moreover. Taken together. sometimes it is as little as a one page police report. 2. they overcharge the suspect to ensure that everything is covered.com Page 60 of 70 . Plea bargaining is also valuable in how justice is applied to first time offenders and remorseful offenders. they can work towards proving their innocence. Unfortunately. many people avoid this harm by plea bargaining in a murder trial to long prison terms. Rather than having to face many years in prison. As such. the United States criminal justice system is not perfect. This can happen in several ways. For example. bargaining a speeding ticket down to a lesser offense). we value responsibility in our society and plea bargaining rewards those who take responsibility for their actions. it is clear that plea bargaining upholds the criminal justice system by ensuring punishment is proportional to the crime committed and to the characteristics of the criminal. Plea bargaining alleviates this problem by again providing proportionality and insuring that innocent people are not convicted to extremely harsh sentences. but plea bargaining helps to mitigate this effect. First. Many believe that sentencing in the United States is too rigid and draconian. Plea bargaining allows prosecutors to adjust the charges pressed as more information comes to light in the subsequent investigation. This is done because when a person who is innocent is still implicated in a crime. Proportionality The idea of criminal justice is to dole out punishment that fits the crime committed. innocent people can be convicted. We as a society believe that first time offenders deserve leniency. However. plea bargaining help to dampen the impact of an unfair trial that would occur otherwise. they can use plea bargaining to seek lesser damages. Plea bargaining is an essential tool in making sure that proportionality is upheld. Insurance against a flawed trial system Despite being one of the safest and most complex trial systems in the world. they can use plea bargaining as a check on the system. prosecutors generally do not have a lot of information when they initially charge a suspect.
com Page 61 of 70 . plea bargaining promotes justice in the system as a whole because it gives defendants more choices in accepting or rejecting the plea. As such. we are debating the merits of plea bargaining in relation to the system as a whole. plea bargaining occurs in 95% of criminal convictions. Without plea bargaining. it can be a well coordinated and speedy trial. the system as a whole would such down. Both prosecutors and defense lawyers have more time to devote to trials when the majority of defendants choose to lighten caseloads through plea bargaining. Without plea bargaining. that the criminal justice system heavily relies upon plea bargaining to function. foundationbriefs. Plea bargaining is necessary for justice in the United States Currently. lawyers. Today. Defendants would no longer be able to have a speedy trial because the court dockets would fill up and become backlogged. plea bargaining is crucial to ensuring that when a person does choose to exercise their right to a trial. and prosecutors greater ability to allocate resources to those who go to trial. Undoubtedly.October 2010 Counters: Con 3. It can be seen then. there would be no realistic way to guarantee the Constitutional rights associated with criminal justice. and it gives judges.
com Page 62 of 70 .Counters foundationbriefs.
By comparison. a vastly inferior substitute that we put up with. pending cases increased by 112%.wlu.htm#s2>. the number of incarcerated defendants awaiting trial on Bronx cases actually declined by 2%.November 2010 Pro: Pleas Unnecessary Pro Counters Plea Bargains Worse than Trials Covey. though.nyc. Certainly not. like a counterfeit Rolex watch. Q. Moreover. 13 Dec. the average time to disposition during the first quarter of this year was faster by 19 days than in Manhattan. it has improved the quality and professionalism of criminal justice in the Bronx. between last November and this April. Additionally. lacking any of the collateral benefits of trial (such as the creation of a public record of the crime and the evidence) but producing substantial savings in resources. Con (On the Bronx removing plea bargaining): Q. plea bargains cast in trial shadows can at best only replicate the error rate of the trial system. <http://bronxda. Moreover. pending cases actually decreased by a fraction. Viewing your policy over its first six months.pdf> To the extent that trials themselves are imperfect vehicles for separating the innocent from the guilty.com Page 63 of 70 . Signaling and Plea Bargaining's Innocence Problem. Washington and Lee University. for the first four terms of this year. outcomes negotiated in the shadows of trial likely are a good deal less accurate than trial outcomes themselves. foundationbriefs. an average of 14% each year. 2010. Thus. Q. and at worst. 08 Dec. 1 June 1993. because it is much cheaper than the real thing. In the eight years prior to my policy. Russell D. between April 1992 and April 1993 pending cases increased by only a fraction of 1%.gov/fcrime/plea. Web. are the City jails exploding with inmates awaiting trial? A. Web. what is its greatest accomplishment? A. the trial shadow model depicts plea bargaining as at best a comparable substitution for trial. Rep. 2009. As a result of your policy. Bronx County District Attorney's Web Site. (Pg. <http://law. given the substantial uncertainties inherent in attempting to estimate probabilities of conviction based on the often skeletal pretrial evidentiary record. Simply put. 83) System Can Function Without Pleas "Plea Bargaining. In fact." Interview.edu/deptimages/Law%20Review/661CoveyPublished. and the median time to disposition was faster by 20 days than it was statewide. Not at all. 2010. Are pending cases now escalating out of control? A. both in theory and in practice.
however. (21) foundationbriefs. Most interviewees attributed the increase in trial rates immediately after the ban to the ban itself.ajc." and police rarely went to court. resulting in increased police professionalism. 2010. In 1975.ak. Other Judicial Council studies found that the rate of trials increased again in 1977.pdf>. (1) Although more trials occurred immediately after the ban. police opinion grew more positive. 14 Dec. Rep. <http://www. and John Kruse. By 1980. January 1991. the system managed to accommodate them without major disruptions. The standard shifted from a "probable cause" standard to a "beyond a reasonable doubt" standard." (16) Trials did increase in the first year after the ban. disposition times for criminal cases actually improved. the trial rate had dropped considerably. and by 1978 had levelled off. was substantially curtailed. (8) In the prosecutors' offices. the rate had dropped back to 7% of all cases arrested or referred to the prosecutors. Teresa. The Judicial Council's initial evaluation of the ban found that plea bargaining.com Page 64 of 70 . from 7% of all cases to 10%. and by 1984. ALASKA'S PLEA BARGAINING BAN RE-EVALUATED. both charge and sentence bargaining.January 2010 Pro: Efficiency Argument Insufficient White Carns. Nor was there substantial evidence that plea bargaining went underground. saying that police work prior to 1975 was "very sloppy. (14) In the longer run. strongly supported the conclusion that while trials did increase for the first two to three years after the ban. and that despite the dire predictions of unmanageable caseloads and backlogged trials. A veteran police officer described the effects of the policy on the Anchorage Police Department. the increase was handled by the system without significant new resources. the ban caused increased attention to the screening and charging decisions for the acceptance of cases. Alaska Attorney General Avrum Gross banned plea bargaining in Alaska.state. The gradual decline in trial rates and their stability in the mid-1980s suggest that the justice system adjusted to the ban and to subsequent changes in the criminal code and sentencing structure without resorting to trials.us/reports/plea91exec. both statistical and interview. After the ban. the prosecutorial demands for stronger cases "forced us to go back and become good investigators. It stayed at about that level through 1987. (21) The evidence. Web. (11) Pre-filing screening of cases by prosecutors led to new standards for police investigations.
6%-in the percentage of indictments containing fewer counts than arrest charges. These differences are statistically significant (299-300) foundationbriefs. Robert. (299) Table 3 shows an increase-from 13. Defense lawyers agreed that otherwise there were no deals obtainable from the prosecutor's office during the postperiod. such as where the victim of a sex offense would have found it especially traumatic to testify at trial." UCLA Law Review 35.com Page 65 of 70 . 15 Dec. The district attorney said that he allowed explicit concessions only in capital cases or in other exceptional situations. Plea bargaining can be successfully banned: Defense counsel and prosecutors agreed that charge bargaining was much more infrequent after the ban. 2010. Office policy prohibited either count dismissals or charge reductions following the return of an indictment. Inflated indictments might result in too many acquittals.October 2010 Counters: Con Weninger. Web. "THE ABOLITION OF PLEA BARGAINING: A CASE STUDY OF EL PASO COUNTY. TEXAS. Exceptions had to be cleared through the district attorney or his first assistant. He stated that he was more conservative in charging because of the surge in jury trials.2% to 18. The table also shows an increase-from 8.265 (1988): 265-314.8% to 13.3%-in the percentage of indictments containing a reduction in the primary arrest charge. (296) Prosecutors were of the opinion that the ban affected their charging practices and that overcharging-the practice of indicting a case for more than it was worth-was less frequent after the prohibition. The assistant who was responsible for screening the bulk of felony cases during the postperiod said that indictments then were less likely to contain charges that could not be supported by evidence. or where the accused had cooperated in the prosecution of other defendants by testifying against them.
PBS: Public Broadcasting Service.]" I think that's a kind of a shocking idea. By basing its entire theory on pragmatism rather than the Constitution. Timothy. If a practice is unconstitutional. CATO Institute. and finally overthrown. "In Defense of Plea Bargaining. Web.” The Court thus upheld the practice of plea bargaining solely on pragmatic grounds: “A rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. There has to be a way for us to do it too. efficiency cannot excuse it. Frontline. foundationbriefs. Our president thinks we can send a manned mission to Mars at a cost of $500 billion. 2010. or some good to be attained by pushing the powers of the government beyond their legitimate boundary. just as segregation was." Regulation.” This begs the question.the right to be heard in court? Something is wrong with that picture. and yet we have a justice system that doesn't think it can afford to give defendants the most basic of their rights -." Interview. Aspinwall. 16 Jan.” the Court wrote. If a practice offends the Constitution. Albert . 9 Dec. but it's necessary. “But that consideration can have no weight with me. is an “inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas. What do you say to those who argue that plea bargaining is necessary? The bottom line argument for lots of people is. "OK. 2004.” wrote dissenting New York Court of Appeals chief judge Greene Bronson in the 1850 case Oakley v. Web. "The Plea: Interview Albert Alschuler. 2010. It is by yielding to such influences that constitutions are gradually undermined. “It is highly probable that inconveniences will result from following the Constitution as it is written.” (29) Alschuler.October 2010 Counters: Con Efficiency Does not Justify Plea Bargaining Sandefur.com Page 66 of 70 . But the Court frankly appealed to necessity: “The imposition of these difficult choices. Most nations of the world poorer than ours manage to implement the right to trial. 12 Dec. Fall 2003.… There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power— some evil to be avoided. it ought to be driven into the shadows. We'd have to have a courtroom for every filling station if we tried to implement the right to trial [for every defendant. the Hayes Court opened itself to the charge that it was editing the Constitution to suit current needs. it may be unfair.
com Page 67 of 70 . and months-long court disputes over the meaning of a lengthy arcane regulation.November 2010 Coupon Roberts. 2010. asset forfeiture. such as drug possession and trumped-up charges based on regulatory interpretation.htm>. Paul C. the courts would not be able to handle the caseload. The obvious solution is to create enough courts to handle the case-load or to reduce the caseload by eliminating victimless crimes. 14 Dec. <http://www. foundationbriefs. VDare. "The Growing Problem Of Wrongful Conviction. 15 Apr. This argument is unconvincing. 2003.vdare. Without the war on drugs.com/roberts/independent_review. A circularity of reasoning justifies plea bargaining. Web. the argument goes. Without plea bargaining." The Independent Review. there would be enough courts and judges to handle the serious crimes.
9 Dec. Life. 9 Dec. Timothy. A criminal defendant. It follows that a defendant can “sell” his right to trial if he so chooses. CATO Institute. Today. Inc. there seems little sense in saying that the jury right is inalienable. and waive their right to an attorney.November 2010 Coupon Con Counters Plea Bargaining is not a Direct Violation of Rights Sandefur." Regulation. If defendants can waive personal jurisdiction.com Page 68 of 70 . not a natural right. Web. Timothy. As Lynch says. 2010. CATO Institute. 9 Dec. A four-year sentence for one does not increase the punishment for the other. it simply fails to decrease the other’s sentence — something to which neither defendant is entitled to begin with. Web. while requiring jury trials may make sense as a matter of policy. The U. "In Defense of Plea Bargaining. Timothy. Fall 2003. just as it may offer to forgive other debts or confer other benefits. Web. it seems to be universally conceded that the right to a jury trial is alienable. But the defendant has no grounds for complaint if the government chooses not to. he is rightfully subject to any indictment consistent with the facts and law. DePasquale that the public does not “have an enforceable right to a public trial that can be asserted independently of the parties in the litigation. "In Defense of Plea Bargaining." Regulation. 2010. Supreme Court held in the 1979 case Gannett Co. it is not an inalienable right. The government may offer leniency and give up its right to indict him in exchange for a plea. But both of the criminals in Judge Young’s example committed crimes for which they might be sent to jail for 20 years. has no right not to be indicted for his crimes. The disparity of their sentences does not represent foundationbriefs.” That seems reasonable. (30) No Right to a Public Trial by Jury Sandefur. v. the criminal may not walk away from the state. by contrast. and the pursuit of happiness are inalienable by nature.S. Fall 2003. Fall 2003." Regulation. and nothing in the Constitution says otherwise. CATO Institute. "In Defense of Plea Bargaining. (29) Plea Bargaining Does not Violate Equal Protection Sandefur. neither has a right to demand a four-year sentence. But the right to a jury is a civil right. liberty. 2010. And at least some defendants — often guilty ones—benefit from doing so.
there were roughly two million criminal trials in the United States. CATO Institute. 2007. it represents a benefit conferred on the party that did bargain. But the real wrongful conviction rate is almost certainly lower. April 26. based on several admittedly questionable assumptions. the wrongful post-trial conviction rate is only 0. it is still considerably less than the mythmakers would have us believe. "In Defense of Plea Bargaining. foundationbriefs. but note that Lynch assumes that the innocent defendant will be convicted and sentenced to 20 years. “It is easy for some people to breezily proclaim that they would never plead guilty to a crime if they were truly innocent. Web.(31) Wrongful Convictions are not as Prevalent as Claimed Morris B." Wall Street Journal. the hypothetical defendant’s risk profile changes. and significantly so.013 percent. not plea bargaining. as the innocence merchants are wont to do. If not. Since only 5 percent of cases are tried. "The 'Innocence' Myth. says Hoffman. Hoffman. rather. • • Assuming as many as 25 percent of those trials resulted in acquittals (and ignoring. 9 Dec. Of course. Earlier this week the innocence project at Cardozo School of Law issued a press release celebrating the 200th person exonerated by DNA testing.if defendants are so afraid of trials that they regularly plead guilty to crimes they did not commit in order to avoid a trial. Lynch wrote in his 2002 article.. then our target should be the trial system. Fall 2003. not plea bargaining. the problem of wrongful acquittals). (31) Wrongfully Pleading Guilty is not the Fault of Plea Bargaining Sandefur.com Page 69 of 70 ..00065 percent. the decision is not so easy. that would place the overall wrongful conviction rate at around 0. including that the innocence-project data is representative.October 2010 Counters: Con greater punishment being visited on the party that refuses the bargain. But even if this estimate is an order of magnitude or two low." Regulation. Without that assumption. this is just a lower bound estimate. 2010. and surely innocent defendants have reason to believe that they are less likely to be convicted. then that is an indictment of the trial system.” That is true. Timothy. but when one is confronted with the choice of two years in jail or quite possibly 20 years’ imprisonment. But in the 20 years innocence projects have been operating. says Morris. and that no innocent people plead guilty.
Kevin. <moritzlaw.edu/osjcl/Articles/Volume7_2/McMunigal-FinalPDF.pdf>. "Defense Counsel and Plea Bargain Perjury.osu.com Page 70 of 70 ." OHIO STATE JOURNAL OF CRIMINAL LAW 7 (Spring 2010): 653-58. In short. Even if the client were neither charged nor convicted of perjury or making false statements to a government official. Web. the commission of such crimes or even strong suspicion of commission of such crimes could easily prompt the prosecutor to retract the plea agreement along with its benefits and move both the prosecutor and the sentencing judge to adopt a more punitive posture toward the client at sentencing. 2010. 15 Dec. the client's perjured testimony scheme may well result in a lengthier rather than a shorter sentence.October 2010 Counters: Con False Testimony is Unlikely McMunigal. (658) foundationbriefs.