Plea Bargaining
The use of prosecutorial discretion within the court system allows the prosecutor
the freedom or authority to make judgments based on the existing circumstances as he
or she perceives them. It is the job of the Executive Branch to use discretion when
dealing with federal laws. However in criminal law, including federal and state levels, it
is up to the prosecutors to use his or her discretion. One of the most used forms of
prosecutorial discretion is the plea bargain. A plea bargain gives the prosecutor the
ability to accept a guilty plea on a lesser charge than that was originally brought.
It is estimated that “…over ninety percent of all criminal cases are disposed of
through guilty pleas” (Whitebread, 2000). The majority of these guilty pleas were the
result of a “…‘plea bargaining’ between the prosecution and the defense, in which the
former makes charges or sentencing concessions in exchange for a plea of guilty”
(Whitebread, 2000). Although the use of plea bargaining has both a positive and
negative side, “…the courts have come to accept guilty pleas and plea bargaining as a
necessary and established part of the criminal justice system” (Whitebread, 2000).
A plea agreement is usually reached after the prosecution and the defense
engage in a discussion regarding the issues and severity of the case at hand. The
prosecution will normally offer one or more of the following solutions: “…(1) a reduction
in charge; (2) dismissal of other pending charges; (3) a promise to recommend or not
contest a particular sentence or range of sentences; or (4) a stipulation that a particular
sentence is the appropriate disposition” (Whitebread, 2000). The defendant will then
decide whether to take the plea of guilty based on the offer given. There are essentially
two types of guilty pleas in which the defendant can plea. The first is the common plea
of guilty. The second is a plea of nolo contendere which is “identical to the guilty plea,
except that it cannot be used against a defendant as an admission of guilt in a
subsequent civil case” (Whitebread, 2000). When a defendant agrees to take a plea
bargain and plea guilty they may also be agreeing “…to testify against a co-defendant,
forgo asserting certain rights, or provide other benefits to the prosecution” (Whitebread,
2000).
In the case of Kirby v. Illinois (1877) the Supreme Court held that “…the Sixth
Amendment right to counsel attaches whenever, after the initiation of criminal
proceedings, ‘a defendant finds himself faced with the prosecutorial forces of organized
society, and immersed in the intricacies of substantive and procedural criminal law”
(Whitebread, 2000). The defendant is also “…entitled to counsel during the bargaining
process, as well as during arraignment” (Whitebread, 2000). The prosecutor cannot
bargain directly with the defendant unless there has been a waiver of counsel. When
the counsel does perform the bargaining they are required by the Sixth Amendment to
do so effectively. Counsel should also “…carry out sufficient investigation of the case to
permit him to advise his client as to various charging and sentencing options. He
should also ensure that his client understands the options available” (Whitebread,
2000). The Supreme Court has held that “…failing to fulfill these tasks is not
necessarily ineffective assistance of counsel under the Sixth Amendment” (Whitebread,
2000). Hill v. Lockheart (1985) established that in order to prove ineffectiveness of
defense counsel, the defendant must show a reasonable probability that, except for
counsel’s errors, the defendant would not have plead guilty.
Brady v. United States (1970) was a very important case because “...it was the
first Supreme Court opinion which explicitly condoned plea bargaining, [and] … it
provided the theoretical basis for analyzing the validity of various types of bargains”
(Whitebread, 2000). “While indicating that a guilty plea that is ‘compelled’ by the
government is invalid under the Fifth Amendment because a defendant is thereby
forced to ‘testify’ against himself, it was careful to distinguish between a compelled plea,
on the one hand, and a plea which is merely ‘caused’ by a legitimately posed offer”
(Whitebread, 2000). McMann v. Richardson (1970) and Parker v. North Carolina (1970)
were both ruled on the same day as Brady. They emphasized the difference between
“causation” and “coercion” (Whitebread, 2000). These cases established that “…if the
coercion leading to a confession also tainted the plea, a valid Fifth Amendment claim
would exist. But here the defendants were merely alleging a ‘but for’ relationship
between the confession and the guilty plea which did not make out a valid
involuntariness claim” (Whitebread, 2000).
The Brady case “…did not address the constitutionality of inducements
consciously offered by the state to obtain a plea” (Whitebread, 2000). However, the
case of Bordenkircher v. Hayes (1978) established that a defendant’s rights are not
violated when a prosecutor threatens to re-indict the accused on more serious charges
if he or she is not willing to plead guilty to the original offense. The Supreme Court
“…reasserted that an action taken by a defendant in plea negotiations passes
constitutional muster if it represents a choice among known alternatives” (Whitebread,
2000). The Supreme Court also reiterated the holding in North Carolina v. Pearce
(1969) which stated that “… punishing a defendant ‘because he has done what the law
plainly allows him to do is a due process violation of the most basic sort’” (Whitebread,
2000).
Statutes can also require greater sentencing if no plea is reached. This is shown
in the case of Corbitt v. New Jersey (1978) where the defendant could have plead guilty
and the judge would have had the choice between sentencing him to 30 years or life
imprisonment. However, Corbitt plead not guilty and was given life imprisonment
because it was required by the New Jersey state statute. The Supreme Court
“…upheld this scheme against a due process claim, concluding that it could not permit
bargaining by a prosecutor, as it had in Bordenkircher, ‘and yet hold that the legislature
may not openly provide for the possibility of leniency in return for a plea’“(Whitebread,
2000).
The case of United States v. Mezzanatto (1995) established that a defendant
who wants to plea bargain in federal court can be required to agree that, if he or she
testifies at trial, his or her statements during the plea barging negotiations can be used
against him or her at trial. In this case there were no negotiation reached and the
defendant testified at the trial. However, the prosecution was allowed to use the
contradictory statements made at the negotiation meeting to rebut the defendants
testimony. The defendant appealed his conviction on three grounds:
(1) the right to prevent prosecution use of plea statements is so important
to a ‘fair procedure’ that it should be considered unwaivable; (2) allowing
such waiver will deter plea bargaining by defendants (who will fear that
their negotiation statements might provide the prosecution with rebuttal
evidence); and (3) allowing waiver will encourage prosecutorial abuse of
the bargaining process (Whitebread, 2000).
Santobello v. New York (1971) established that the promise of a prosecutor that
rests on a plea of guilty must be kept in a plea bargaining agreement. The Supreme
Court discussed “…the many benefits associated with disposing of charges after plea
discussions, but added that the utilization of this process presupposes fairness in
securing agreement between an accused and a prosecutor”(Whitebread, 2000). The
Court stated in its conclusion that “…‘when a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled’” (Whitebread, 2000). The
defendant is also required to fulfill their end of the bargain as established in Ricketts v.
Admason (1987). The Ricketts v. Admason held that the defendant is required to keep
his or her side of the bargain to receive the promised offer of leniency, because plea
bargaining rests on an agreement between the parties.
When a defendant pleads guilty it is the duty of the judge to ensue that the plea
meets certain constitutional and statutory standards. Boykin v. Alabama (1969)
established that the defendant must make an affirmative statement that the plea is
voluntary before the judge can accept it. The Supreme Court also felt that it was vital
for the judge to conduct a direct interview with the defendant in order to ascertain the
plea’s voluntariness as seen in McCarthy v. United States (1969). The requirements
that are required by the judge to address the defendant are to ensure:
(1) that the plea is ‘intelligent’ i.e., that the defendant understands the
elements of the plea and any associated bargain; and (2) that the plea is
‘voluntary,’ i.e., that the defendant was not coerced into the plea.
Additionally, to ensure that the plea is ‘accurate,’ the judge should make
some effort to ascertain (3) that there is some sort of factual basis for the
plea (Whitebread, 2000).
North Carolina v. Alford (1970) was another case that helped mold the regulations on
plea bargaining. This case established that accepting a guilty plea from a defendant
who maintains his or her innocence is valid.
After reviewing all the information on plea bargaining I believe that it would be
hard for a prosecutor to carry out all of his or her necessary functions without such
discretionary powers. The use of plea bargaining benefits the defendant in ways such
as lessening the time and money spent on defending themselves at trial, lessens the
risk of a harsher punishment, and avoids the publicity that is sometime involved with a
public trail. The prosecution also benefits by saving time and money on a potential
lengthy trail. The court system in general is the one that receives the largest benefit of
plea bargains. The system is already over burdened with cases and if there were no
plea bargains, the courts would have to conduct a trial on every crime that was charged.
I believe that the use of the plea bargain is useful to all parties involved and the system
should only change if there is some way in which it could become better.
Works Cited
Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663 (1978).
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969).
Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970).
Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492 (1978).
Hill v. Lockheart, 474 U.S. 52, 106 S.Ct. 366 (1985).
Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877 (1972).
McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166 (1969).
McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441 (1970).
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969).
Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458 (1970).
Ricketts v. Admason, 483 U.S. 1, 107 S.Ct. 2680 (1987).
Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495 (1971).
United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797 (1995).
Whitebread, C.H., & Slobogin, C. (2000). Criminal Procedure An Analysis Of Cases And
Concepts. New York: Foundation Press.