In the United States, plea bargaining undermines the criminal justice
system.
Affirmative Brief #1
Plea bargaining is a direct violation of the criminal justice system because innocent defendants may plead
guilty.
TAG- Plea bargaining introduces a systemic incentive for innocent defendants to plead guilty.
Gregory M. Gilchrist* 101 Iowa L. (2016) “Iowa Law Review”. Trial Bargaining, Rev. 609.
https://ilr.law.uiowa.edu/print/volume-101-issue-2/trialbargaining/#:~:text=Plea%20bargaining%20introduces%20a%20systemic,to%20the%20criminal%20justi
ce%20system. Accessed on September 02, 2021.
“The dominance of plea bargaining, however, generates significant costs. Hefty trial
penalties empower prosecutors to secure guilty pleas in almost all cases, in turn effectively
nullifying the procedural protections of trial. Outcomes are determined through a process
less reliant on evidence and more reliant on the risk tolerance of individual prosecutors and
defendants. Plea bargaining introduces a systemic incentive for innocent defendants to
plead guilty. It undermines, to the point of negating, the role of the jury. It strays from the
rule of law toward the authority of discretion. It silences those subject to the criminal justice
system. And it threatens the very legitimacy of that system.” (Iowa Law Review)
TAG- Plea bargaining and how it undermines the criminal justice system.
Cornell Law School. “Legal Information Institute”. Plea Bargain
https://www.law.cornell.edu/wex/plea_bargain. Accessed September 02, 2021
“Although plea bargaining allows the criminal justice system to conserve resources, the
plea bargains are controversial. Some commentators oppose plea bargains, as they feel that
plea bargains allow defendants to shirk responsibility for the crimes they have committed.
Others argue that plea bargains are too coercive and undermine important constitutional
rights. Plea bargaining does require defendants to waive three rights protected by the Fifth
and Sixth Amendments: the right to a jury trial, the right against self-incrimination, and the
right to confront witnesses. The Supreme Court, however, in numerous cases (such as Brady
v. the United States, 397 U.S. 742 (1970) has held that plea bargaining is constitutional. The
Supreme Court, however, has held that defendants’ guilty pleas must be voluntary and that
In the United States, plea bargaining undermines the criminal justice
system.
defendants may only plead guilty if they know the consequences of doing so.
McCarthy v. the United States 394 U.S. 459 (1969).”
2) the prosecutor’s interest in serving justice while conserving the
resources of its office; and 3) the interest of the judicial system of achieving
efficient resolutions of a large number of cases.”
TAG- Plea bargaining introduces a systemic incentive for innocent defendants to plead guilty.
“SOLVING THE PROBLEM OF INNOCENT PEOPLE PLEADING GUILTY.” NYCLA Board Report, New
York County Lawyers Association, www.nycla.org/pdf/NYCLA%20Board%20Report%20%20Solving%20the%20Problem%20of%20Innocent%20People%20Pleading%20Guilt y.pdf. Accessed
9/13/21
“Jury trials and an independent judiciary have long been recognized and
celebrated as a means to determine guilt or innocence and as a check on arbitrary
government power. 3 The reality today, however, is that few criminal defendants are tried
by a jury of their peers. Negotiated plea bargain agreements account for well over 90% of
criminal dispositions—with less than 3% of cases proceeding to trial—in both federal
courts nationwide and in the New York 3 See Lucian E. Dervan & Vanessa A. Edkins
Ph.D., The Innocent Defendant’s Dilemma: An Innovative Empirical 4 State Courts.4 A
principal reason for this wide use of plea bargaining is that, in the majority of cases, a
negotiated plea agreement is seen as mutually beneficial for both an accused criminal
defendant and the government. The ability of prosecutors to offer, and a defendant to
accept, a reduced charge and/or a shorter sentence in exchange for a plea of guilty
satisfies several interests: 1) the defendant’s interest in obtaining the lowest sentence
possible without facing the risk of trial;
TAG- Plea bargaining introduces a systemic incentive for innocent defendants to plead guilty.
In the United States, plea bargaining undermines the criminal justice
system.
Affirmative Brief #2.
Colombian Law, “Article title THE HIDDEN LAW OF PLEA BARGAINING” Columbia Law
Review. Published July 02, 2018. https://columbialawreview.org/content/the-hidden-law-ofplea-bargaining/. Accessed September 14, 2021
“Plea bargaining, we are told, is lawless. It “evolved in the unregulated interstices of
our criminal justice system.”1 And it continues to be driven not by law but by
power—the vast, unregulated power of prosecutors. 2 As plea bargaining scholars
have long recounted, prosecutors’ ability to threaten inflated sentences, combined with
their power to trade those sentences away for pleas of guilt, allows them to control
“who goes to prison and for how long.” 3 As for law, it has abandoned, on this
account, its most basic function: channeling prosecutorial power through regulatory
constraints. 4 Substantive criminal law, after all, now penalizes so much conduct, so
severely, and so many times over that it serves simply to delegate power to
prosecutors, transforming them into administrators of an “unwritten criminal ‘law’
that consists only of [their own] discretionary decisions” to charge certain offenses or
to offer certain deals. 5 Meanwhile, the constitutional law of criminal procedure that is
ostensibly designed to regulate state power imposes virtually no constraints on
prosecutors’ plea bargaining practices at all. 6 Thus, the conventional account: Plea
bargaining operates “outside the law’s shadow,” 7 governed instead only by brute
prosecutorial power that is exercised in ways “not usually written down anywhere,” let
alone “governed by formal legal standards.” 8”
TAG- Plea bargaining and how it undermines the criminal justice system.
Tina Wan, “THE UNNECESSARY EVIL OF PLEA BARGAINING: AN
UNCONSTITUTIONAL CONDITIONS PROBLEM AND A NOT-SO-LEAST
RESTRICTIVE ALTERNATIVE” The Unnecessary Evil Of Plea Bargaining. University of
In the United States, plea bargaining undermines the criminal justice
system.
Southern California Gould School of Law 2005-2008.
https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/issue_17/07_Wan_Macro.pdf.
Accessed September 14, 2021.
Under the unconstitutional conditions doctrine, the government cannot condition a
benefit on the recipient giving up a constitutional right, even if the government is not
required to provide that benefit in the first place.8 A benefit conditioned on
surrendering a constitutional right creates an impermissible burden on that right,
“even though the burden may be characterized as being only indirect.”9 Viewed in
this light, the process of
plea bargaining poses an unconstitutional conditions problem.10 During the
plea bargaining process, prosecutors generally offer charging or sentencing
concessions to induce defendants to plead guilty and waive their right to a
jury trial or threaten defendants with increased charges or more severe sentences if
they do choose to go to trial.11 In such situations, the state is essentially penalizing
those defendants who choose to exercise their constitutional rights and rewarding
those who refrain from doing so. This burden on the right to jury trial effectively
violates a defendant’s due process rights and would normally entail strict scrutiny
review.12 The Supreme Court, however, has consistently upheld the constitutionality
of plea bargaining in a number of cases13 and has never viewed plea bargaining as
presenting an unconstitutional conditions problem.14 Some commentators suggest
that the Court likely sees plea bargaining as a constitutional condition.15 The Court
often justifies the use of plea bargains, noting that “[plea bargaining] is an essential
component of the administration of justice,” and that “[i]t leads to [the] prompt and
largely final disposition of most criminal cases.”16
TAG-Plea Brgainning and how it underminds teh criminal justice system
Colombian Law, “Article title THE HIDDEN LAW OF PLEA BARGAINING”
Columbia Law Review. Published July 02, 2018.
In the United States, plea bargaining undermines the criminal justice
system.
https://columbialawreview.org/content/the-hidden-law-of-plea-bargaining/.
Accessed September 14, 2021
“Plea bargaining, we are told, is lawless. It “evolved in the unregulated
interstices of our criminal justice system.” 1 And it continues to be driven not by
law but by power—the vast, unregulated power of prosecutors. 2 As plea
bargaining scholars have long recounted, prosecutors’ ability to threaten inflated
sentences, combined with their power to trade those sentences away for pleas of
guilt, allows them to control “who goes to prison and for how long.” 3 As for law,
it has abandoned, on this account, its most basic function: channeling
prosecutorial power through regulatory constraints. 4 Substantive criminal law,
after all, now penalizes so much conduct, so severely, and so many times over that
it serves simply to delegate power to prosecutors, transforming them into
administrators of an “unwritten criminal ‘law’ that consists only of [their own]
discretionary decisions” to charge certain
offenses or to offer certain deals. 5 Meanwhile, the constitutional law of criminal
procedure that is ostensibly designed to regulate state power imposes virtually no
constraints on prosecutors’ plea bargaining practices at all. 6 Thus, the
conventional account: Plea bargaining operates “outside the law’s shadow,” 7
governed instead only by brute prosecutorial power that is exercised in ways “not
usually written down anywhere,” let alone “governed by formal legal standards.”
8”
Negative brief-
In the United States, plea bargaining undermines the criminal justice
system.
TAG- plea bargaining keeps prisons less crowded and makes space for more serious criminal
offences.
FindLaw. “Plea Bargains and Judicial Economy.” Findlaw, Thomson Reuters, 19 Feb. 2019,
www.findlaw.com/criminal/criminal-procedure/plea-bargains-and-judicial-economy.html.
Accessed 14 sep. 2021
Similarly, many prosecutors like plea bargains because they give the prosecutor
flexibility and allow them to "screen out" smaller criminal offenses. By screening out
lesser offenses, a prosecutor can bring the full power of their office to focus on serious
criminal offenses. For instance, many prosecutors would rather focus their time on a
high-profile murder case than a minor drug possession case, both for political and
practical reasons.
TAG- plea bargains help people who are not guilty but have a high chance of conviction
less prison time or other punishment that can also begin immediately.
Moher, Aaron. “The Necessity of Plea Bargaining.” Drake.Edu,
www.drake.edu/media/departmentsoffices/dussj/20132011documents/PleaBargainingMohr.pdf. Accessed 14 Sept. 2021.
For a defendant who sees a slight possibility of acquittal, the advantages of pleading
guilty and limiting the probable penalty are obvious—his exposure is reduced, the
correctional processes can begin immediately, and the practical burdens of a trial are
eliminated. For the State there are also advantages—the more promptly imposed
punishment after an admission of guilt may more effectively attain the objectives of
punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources
are conserved for those cases in which there is a substantial issue of the defendant's guilt
or in which there is substantial doubt that the State can sustain its burden of proof. It is
this mutuality of advantage that perhaps explains the fact that at present well over threefourths of the criminal convictions in this country rest on pleas of guilty (15).
In the United States, plea bargaining undermines the criminal justice
system.
TAG- Plea bargains are beneficial to both the prosecution and defendant parties.
Burns, Casey M. “Plea Bargaining: A Practical Convenience or a Line-Crossing System of
Coercion?” Stenson, 2018, p. 8. Stenson journal, www2.stetson.edu/advocacy-journal/wpcontent/uploads/2018/05/Burns_2018.pdf.
Conversely, the Shadow-of-Trial Theory reasons that plea bargaining is a
mutually beneficial process, whereby the parties essentially contract with one
another for a favorable outcome. Some scholars assert that plea bargaining has
grown from a one-sided process, whereby the prosecutor holds all cards, to a
balancing act where prosecutors and defendants can bargain and reach an agreement.
One major benefit cited for both prosecutors and defendants lies in cost.
Specifically, it is reasoned that both prosecutors and defendants face enormous
costs by the time a case goes entirely through the criminal system. It follows that
if those costs can be avoided, the incentive to bargain and reach an agreement
becomes clear and mutually beneficial for both parties.
TAG-