Volume 4, Number 5
January 2011
Release 1: December 13, 2010
Resolved: In the United States, plea bargaining undermines
the criminal justice system.
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January 2011: Release 1: Plea Bargaining
January 2011: Release 1
Crossfire Briefs are published on a weekly basis. This is the first of four releases for the December 2010 topic.
The release draws on general literature. Releases 2, 3, and 4 will draw primarily from books and law review
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January 2011: Release 1: Plea Bargaining
Index—Release 1
General
The Topic In A Nutshell
Definitions Of “Plea Bargaining”
Plea Bargaining Has A Long History
4
5
6
PRO
Most Criminal Convictions Are The Result Of Plea Bargains
The Problems With Plea Bargaining Are Systemic, Not Episodic
Getting It Right “Most Of The Time” Is Unacceptable In A Free Society
Defendants Do Not Freely Trade Their Right To A Jury Trial
On Balance, Plea Bargaining Does Not Help Defendants (Prisoner’s Dilemma)
People Plead Guilty So They Can Go Home
Plea Bargaining Creates A Conflict Of Interest For Attorneys And Judges
Plea Bargaining Takes Power From The Judge And Gives It To The Prosecutor
Plea Bargaining Guarantees That Innocent People Are Punished
Plea Bargaining Is A Form Of Coercion
Plea Bargaining Punishes People Who Exercise Their Right To Trial By Jury
The Court System Isn’t Like You See On Television
Life After A Guilty Plea Ain’t Easy
Federal Plea Bargains Come With A Hitch: Waive The Right To DNA Testing
Plea Bargains Have Been Poorly Investigated
7-10
11
12
13
14-16
17
18
19
20
21-22
23
24
25
26
27
CON
The Criminal Justice System Would Collapse Without Plea Bargaining
Even Without Plea Bargaining Most Cases Would Not Go To Trial
Plea Bargaining Does Not Mean Easier Sentences For Defendants
Mandatory Sentencing Guidelines Make Plea Bargaining More Important
The Justice System Is Different Than When The Constitution Was Drafted
Trial By Jury Is A Civil Right That Can Be Waived By The Defendant
Criticisms Of Plea Bargaining Are Reasons To Reform, Not Abolish, Plea Bargaining
Plea Bargaining Abuses Do Not Demonstrate That Plea Bargaining Is Bad
The DNA Waiver Requirement Has Been Rescinded; It Is Not Intrinsic To Plea Bargaining
Disparate Punishments Are Not Unconstitutional And Are Part Of The System
28
29
30
31
32
33
34
35-36
37
38
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January 2011: Release 1: Plea Bargaining
_______. The Topic In A Nutshell.
Time in 1978,
“Is Plea Bargaining a Cop-Out?” Time. August 28, 1978. http://www.time.com/time/printout/0,8816,916340,00.html.
Accessed December 5, 2010.
Plea bargaining is as widely criticized as it is prevalent. Defendants claim they are railroaded into abandoning their right to
a fair trial by zealous prosecutors who "overcharge" them and then agree to reduce the charge in exchange for a guilty
plea. The public, on the other hand, complains that criminal defendants get off too lightly. In plea bargaining, armed robbery often becomes unarmed robbery (this is known as "swallowing the gun"), and burglaries by night miraculously become the lesser crime of burglary by day.
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
We know that plea bargaining is legal. The U.S. Supreme Court explicitly sanctioned the practice in the late 1970s. The
Supreme Court of Canada in 1987 criticized the notion that justice can be "purchased at the bargaining table," but nonetheless refused to prohibit, or even limit, such deals. We also know it's effective—both for accused criminals looking to
minimize their punishment, and for prosecutors coping with the torrent of cases sloshing through the courts. But is it
right? Are these bargains moral? Those are questions few bother to ask anymore, says John Langbein, a professor of law
and legal history at Yale, and an outspoken critic of the system.
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
The architects of our democracies would have blanched at that kind of centralized power, but it has undeniably yielded
efficiency. Most of the time, it even manages to yield something resembling justice. But is it a wise decision to trade the
liberties and rights offered by our constitutions for the sake of expediency? Just as importantly, are the compromises required to entrench such a system morally defensible? Perhaps it'd be best to ask the petty criminal spending his life behind bars in Kentucky for forging a US$88.30 cheque. Or the admitted child killer now free and living with her own child
somewhere in Quebec. Or better yet, if the Hollinger accused are sent to jail for decades, ask David Radler, in two years'
time, when he's back running his little newspaper empire and spending weekends by the pool in Palm Springs.
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January 2011: Release 1: Plea Bargaining
_______. Definitions Of “Plea Bargaining”.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
A plea bargain is a contract with the state. The defendant agrees to plead guilty to a lesser crime and receive a lesser sentence, rather than go to trial on a more severe charge where he faces the possibility of a harsher sentence.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 24. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Plea bargaining consists of an agreement (formal or informal) between the defendant and the prosecutor. The prosecutor
typically agrees to a reduced prison sentence in return for the defendant’s waiver of his constitutional right against selfincrimination and his right to trial. As one critic has written, “The leniency is payment to a defendant to induce him or her
not to go to trial. The guilty plea or no contest plea is the quid pro quo for the concession; there is no other reason.”
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January 2011: Release 1: Plea Bargaining
_______. Plea Bargaining Has A Long History.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. “Debating the Pros and Cons of Plea Bargaining.” The Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
Miami attorney Scott Fingerhut presented facts and background on plea bargaining, noting it has been around for hundreds of years. After all, he noted, the English offered Joan of Arc a deal: Recant that she heard God command her to lead
the French and they would not burn her at the stake.
Olin in 2002,
Dirk Olin *National Editor at The American Lawyer+. “Crash Course; Plea Bargain.” The New York Times Magazine.
September 29, 2002. http://www.nytimes.com/2002/09/29/magazine/the-way-we-live-now-9-29-02-crash-course-pleabargain.html. Accessed December 5, 2010.
The plea bargain was a prosecutorial tool used only episodically before the 19th century. ''In America,'' Fisher says, ''it can
be traced almost to the very emergence of public prosecution—and public prosecution, although not exclusive to the U.S.,
developed earlier and more broadly here than most places.'' But because judges, not prosecutors, controlled most sentencing, plea bargaining was limited to those rare cases in which prosecutors could unilaterally dictate a defendant's sentence. ''Not until the crush of civil litigation brought on by the explosion of personal-injury cases in the industrial era did
judges begin to appreciate the workload relief plea bargaining promised.'' In other words, plea bargaining is arguably another outgrowth of late-19th-century industrialization.
1633: Galileo gets house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting
Copernican heresies.
1931: Al Capone brags about his light sentence for pleading guilty to tax evasion and Prohibition violations. The judge then
declares that he isn't bound by the bargain, and Capone does seven and a half years in Alcatraz.
1969: To avoid execution, James Earl Ray pleads guilty to assassinating Martin Luther King Jr. and gets 99 years.
1973: Spiro Agnew resigns the vice presidency and pleads no contest to the charge of failing to report income; he gets
three years' probation and a $10,000 fine (roughly one-third of the amount at issue).
1990: Facing serious federal charges of insider trading, Michael Milken pleads to lesser charges of securities fraud; soon
after, his 10-year sentence is reduced to 2 years.
Defenders of American-style plea bargaining point out that its utility is proved by other countries' increasingly explicit
adoption of the U.S. model. Once forbidden in most of Europe and technically banned in Japan, plea bargaining has steadily crept into many countries' systems during the past generation. ''In Germany, they say it's still controversial,'' Alschuler
says, ''but most observers say it happens there now. And Italy went so far as to pass federal legislation formally legalizing
it.'' The Japanese claim that the practice is horrible, but then, Alschuler notes, ''they make a very big deal about repentance for your crimes.'' That need to put remorse on display, which can't exactly be a legal sentence, means that ''it's hard
to deny that they have something like it.'' Scandinavian countries largely maintain prohibitions against the practice.
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January 2011: Release 1: Plea Bargaining
_______. Most Criminal Convictions Are The Result Of Plea Bargains.
PBS.org in 2004,
Introduction for “The Plea” on Frontline. June 17, 2004. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/synopsis.html. Accessed December 7, 2010.
It is the centerpiece of America's judicial process: the right to a trial by jury system that places a defendant's fate in the
hands of a jury of one's peers. But it may surprise many to learn that nearly 95 percent of all cases resulting in felony convictions never reach a jury. Instead, they are settled through plea bargains in which a defendant agrees to plead guilty in
exchange for a reduced sentence.
"The real American justice system is unlike anything depicted on Law & Order and Court TV," says producer Ofra Bikel. "I
know I was stunned when I realized that only about 5 percent of all felony convictions result from jury trials. The rest are
settled by plea bargains. And these deals aren't always to the defendant's advantage."
Frontline in 2004,
“The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
NARRATOR: The 6th Amendment to the Constitution guarantees every citizen the right to be judged by a jury of his or her
peers.
JUDGE: Do you want to give up those guaranteed rights and proceed to plead guilty today?
NARRATOR: Yet about 95 percent of all people who are convicted of felonies across the country give up that right and
plead guilty. Most of these guilty pleas involve bargains in which the accused pleads guilty in exchange for a lesser sentence or a reduced charge.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
Plea bargaining is enormously popular with prosecutors; according to researcher Douglas Guidorizzi, something like 90
percent of criminal cases end in a plea bargain.
Time in 1978,
“Is Plea Bargaining a Cop-Out?” Time. August 28, 1978. http://www.time.com/time/printout/0,8816,916340,00.html.
Accessed December 5, 2010.
Ideally anyone charged with a crime in the U.S. is entitled to his day in court. The litany of rights is familiar: the state must
prove guilt beyond a reasonable doubt, the accused has the right to be tried by a jury of his peers, and an impartial judge
must carefully weigh the facts before handing down a sentence.
The reality, as anyone involved with criminal justice can attest to, is far different. In the vast majority of cases, the accused
has no trial. His "day" in court is the few minutes it takes him to plead guilty. "Here we have an elaborate jury trial system,
and only 10% of the accused get to use it," says Colorado Law School Professor Albert H. Alschuler. "That's like solving
America's transportation problems by giving 10% Cadillacs and making the rest go barefoot." For most defendants, justice
is done by way of a deal: a guilty plea in exchange for the promise of reduced charges or a lighter sentence. Bargains are
generally struck with the prosecutor; the judge usually rubber-stamps them.
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January 2011: Release 1: Plea Bargaining
_______. Most Criminal Convictions Are The Result Of Plea Bargains.
Olin in 2002,
Dirk Olin *National Editor at The American Lawyer+. “Crash Course; Plea Bargain.” The New York Times Magazine.
September 29, 2002. http://www.nytimes.com/2002/09/29/magazine/the-way-we-live-now-9-29-02-crash-course-pleabargain.html. Accessed December 5, 2010.
The Bill of Rights makes no mention of the practice when establishing the fair-trial principle in the Sixth Amendment, but
the constitutionality of plea bargaining has been repeatedly upheld, and the bargain's basic dynamic is well known to
viewers of pulp TV. In fact, says Albert Alschuler, a University of Chicago law professor, roughly 90 percent of convictions
occur when the defendant waives the right to trial and pleads guilty. And most of those pleas involve a deal that reduces
punishment.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 24. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Plea bargaining has come to dominate the administration of justice in America. According to one legal scholar, “Every two
seconds during a typical workday, a criminal case is disposed of in an American courtroom by way of a guilty plea or nolo
contendere plea.”
Dempsey in 2010,
Christine Dempsey *Reporter+. “State Victim Advocate: Too Many Plea Deals.” CTnow.com. November 19, 2010.
http://www.ctnow.com/news/connecticut/hc-victim-advocate-request-1120-20101119,0,7907972.story.
Accessed December 6, 2010.
More than 95 percent of cases in the state's court system over the past four years were resolved without a trial, meaning
too many end with plea bargains built on watered-down charges, the state victim advocate said Friday.
People have died as a result, specifically in domestic violence cases, said the advocate, Michelle Cruz.
Cruz outlined her concerns in a four-page letter to the state Office of Policy and Management Thursday. She asked for a
study of the number of criminal trials in the state, how long it takes to prosecute them, how many cases are resolved with
plea bargains and why.
"There's something seriously wrong," Cruz said.
Her letter said the Danbury judicial district had the lowest percentage of trials over four years: 21 trials from July 1, 2006
to June 30, 2010, only 0.87 percent of its dispositions.
The highest percentage was in the Waterbury judicial district, where 122 trials accounted for 8.68 percent of dispositions,
she wrote.
Although some sentences arise from plea deals for valid reasons, Cruz wrote, "the plea bargain process has been exploited."
Defendant often agree to plead guilty to a lesser charges in order to avoid a trial. There are times when plea bargains are
legitimate, Cruz said — such as if the state lacks evidence or wants to avoid having a child testify against someone who has
sexually abused him or her.
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January 2011: Release 1: Plea Bargaining
_______. Most Criminal Convictions Are The Result Of Plea Bargains.
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
It's an amazing thing for a person to confess to a serious crime—to accept the scarlet letter of a criminal conviction and
give up their freedom willingly, without a fight, passing up the constitutional guarantee of due process.
And yet, every day in Canada and the United States, thousands of accused do just that—throw up their hands and say "I
did it." According to Department of Justice figures, roughly 90 per cent of criminal cases in the United States end in a guilty
plea, the vast majority of which have been negotiated with prosecutors in return for a lesser charge, a lighter sentence, a
more comfortable prison, or an agreement to testify against someone else. A 1997 Queen's University study found that
plea bargaining in Canada is just as common, and works in much the same way.
It's not just prevalent. The plea bargain has become the primary means of dispensing justice in North America. And testimony extracted from conspirators-turned-co-operating-witnesses has become a central feature of nearly every major corporate crime trial in the modern era, from Enron, Tyco and WorldCom, to the current prosecution of Conrad Black, which
rests heavily on the testimony of David Radler, who agreed to plead guilty in exchange for a sentence of 29 months, to be
served in Canada.
But there are too many "administrative" plea bargains, she said.
"After three years of being in Connecticut looking at cases, what I see is a pattern of defendants who are allowed to plea
to a more lenient charge that often doesn't resemble the conduct," said Cruz, who was a prosecutor in Massachusetts. The
lesser, substituted charge "doesn't reflect the seriousness of the offense," she said.
Liptak in 2007,
Adam Liptak *Supreme Court Correspondent+. “Cases Keep Flowing In, But the Jury Pool is Idle.” The New York Times.
April 30, 2007. http://select.nytimes.com/2007/04/30/us/30bar.html. Accessed December 8, 2010.
In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing
Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of
the choices confronting many criminal defendants.
Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge,
William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those
meted out to defendants who plead guilty and cooperate with the government.
The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge
Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all
history.”
Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases,
and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may
be expensive and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and
the federal system itself.
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January 2011: Release 1: Plea Bargaining
_______. Most Criminal Convictions Are The Result Of Plea Bargains.
Liptak in 2007,
Adam Liptak *Supreme Court Correspondent+. “Cases Keep Flowing In, But the Jury Pool is Idle.” The New York Times.
April 30, 2007. http://select.nytimes.com/2007/04/30/us/30bar.html. Accessed December 8, 2010.
In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court
wrote that there were good arguments for “leaving justice entirely in the hands of professionals.” But that is not the theory of the Constitution, he continued, which enshrined “the common-law ideal of limited state power accomplished by
strict division of authority between judge and jury.”
The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place
here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls
“as fundamental a part of our culture as jazz or rock ’n’ roll,” is dying.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 24. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Given the Fifth Amendment’s prohibition of compelled self-incrimination and the Sixth Amendment’s guarantee of impartial juries, one would think that the administration of criminal justice in America would be marked by adversarial trials —
and yet, the opposite is true. Fewer than 10 percent of the criminal cases brought by the federal government each year
are actually tried before juries with all of the accompanying procedural safeguards noted above. More than 90 percent of
the criminal cases in America are never tried, much less proven, to juries. The overwhelming majority of individuals who
are accused of crime forgo their constitutional rights and plead guilty.
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.
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January 2011: Release 1: Plea Bargaining
_______. The Problems With Plea Bargaining Are Systemic, Not Episodic.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 27. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Sandefur argues that because individuals can waive many of their constitutional rights, they can also “sell” their rights.
Even if that argument had merit, it is not the law. But, more importantly, one suspects that it is not the law because the
argument lacks merit. Imagine four people who are charged with auto theft. One defendant pleads guilty to the offense
and receives three years of jail time. The second defendant insists upon a trial, but sells his right to call his own witnesses.
After conviction, he receives four years. The third defendant insists on a trial, but sells his right to be represented by his
famous attorney-uncle, F. Lee Bailey. Instead, he hires a local attorney and, in addition, sells his right to a speedy trial.
After conviction, he receives five years. The fourth insists upon a trial, presents a rigorous but unsuccessful defense and,
after conviction, receives a prison sentence of 10 years. 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.
The constitutional defect with plea bargaining is systemic, not episodic. The rarity of jury trials is not the result of some
spontaneous order spawned by contract negotiations between individuals.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 27. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Thomas Jefferson famously observed that “the natural progress of things is for liberty to yield and government to gain
ground.” The American experience with plea bargaining is yet another confirmation of that truth. The Supreme Court unleashed a runaway train when it sanctioned plea bargaining in Bordenkircher v. Hayes. Despite a steady media diet of titillating criminal trials in recent years, there is an increasing recognition that jury trials are now a rarity in America — and
that something, somewhere, is seriously amiss. That “something” is plea bargaining.
As with so many other areas of constitutional law, the Court must stop tinkering around the edges of the issue and return
to first principles. It is true that plea bargaining speeds caseload disposition, but it does so in an unconstitutional manner.
The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights,
but chose not to adopt them. The Framers believed the Bill of Rights, and the freedom it secured, was well worth any
costs that resulted. If that vision is to endure, the Supreme Court must come to its defense.
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_______. Getting It Right “Most Of The Time” Is Unacceptable In A Free Society.
Langbein in 2004,
John Langbein *Professor of Law & Legal History at Yale University+. “The Plea”. Frontline. June 17, 2004. Transcript.
Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
I do not contend that our jails are stuffed with people who pleaded to things that they didn't do. 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. But the problem is, "most" isn't the way we do business in a free society that cares about individual rights
and individual liberty.
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January 2011: Release 1: Plea Bargaining
_______. Defendants Do Not Freely Trade Their Right To A Jury Trial.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 27. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
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. But plea bargaining is not free trade. It is a forced association. Once a person
has been charged with a crime, he does not have the option of walking away from the state.
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January 2011: Release 1: Plea Bargaining
_______. On Balance, Plea Bargaining Does Not Help Defendants (Prisoner’s Dilemma).
Bar-Gill & Ben-Shahar in 2010,
Oren Bar-Gill *Professor of Law and Co-Director for Law, Economics, and Organization at the New York University School of
Law+ and Omri Ben-Shahar *Professor of Law, University of Chicago Law School+. “The Prisoners’ (Plea Bargain) Dilemma.”
Regulation. Spring 2010. p. 42. http://www.cato.org/pubs/regulation/regv33n1/regv33n1-4.pdf.
Accessed December 5, 2010.
The policy debate over plea bargaining has focused in large part on one question: Do plea bargains help defendants or
hurt them? Proponents of plea bargaining argue that it is good for defendants. The defendant, so the argument goes, can
always choose not to plea and instead go to trial. If a defendant chooses to accept a plea bargain, then the deal must be
better for the defendant than going to trial. Plea bargains add an option, and more options are better than fewer. Against
this view, a prominent opposition highlights the coercive features of the plea bargaining process. Defendants’ choice is not
free, but rather a response to powerful constraints and threats from prosecutors. In the same way that a contract reached
under duress is not beneficial to the coerced party, plea bargains cannot be generally viewed as an improvement.
Bar-Gill & Ben-Shahar in 2010,
Oren Bar-Gill *Professor of Law and Co-Director for Law, Economics, and Organization at the New York University School of
Law+ and Omri Ben-Shahar *Professor of Law, University of Chicago Law School+. “The Prisoners’ (Plea Bargain) Dilemma.”
Regulation. Spring 2010. p. 45. http://www.cato.org/pubs/regulation/regv33n1/regv33n1-4.pdf.
Accessed December 5, 2010.
We argue that plea bargains do not always represent improved choice for defendants, but rather a coordination trap.
Without plea bargains, many defendants would not face the risk of trial; they might not be charged at all. Defendants are
charged, and are threatened with trials, only because the prosecutor expects them to plea; they would not have been
charged otherwise. Our analysis therefore qualifies one prominent argument in favor of plea bargains, which rests on the
logic that it makes everyone better off.
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January 2011: Release 1: Plea Bargaining
_______. On Balance, Plea Bargaining Does Not Help Defendants (Prisoner’s Dilemma).
Bar-Gill & Ben-Shahar in 2010,
Oren Bar-Gill *Professor of Law and Co-Director for Law, Economics, and Organization at the New York University School of
Law+ and Omri Ben-Shahar *Professor of Law, University of Chicago Law School+. “The Prisoners’ (Plea Bargain) Dilemma.”
Regulation. Spring 2010. pp. 42-43. http://www.cato.org/pubs/regulation/regv33n1/regv33n1-4.pdf.
Accessed December 5, 2010.
The assumption that in the absence of plea the defendant would face trial is only true if prosecutors have credible threats
to take to trial those defendants that choose not to plea. But can prosecutors credibly make such a threat?
To be sure, prosecutors have enough control over the criminal process to be able to make such trial threats. This aspect
might lead us to conclude that the trial threat is credible; indeed, thinking of each individual case in isolation, this conclusion is sensible, almost obvious. In any individual case against a single specific defendant, the prosecutor may have
enough discretion and resources to make a trial threat in a credible manner, and to carry it out if the defendant does not
budge.
However, the prosecutor has to bargain against more than one defendant at any given time — more than she can possibly
afford to take to trial. Therefore, thinking about each individual case in isolation misses some important element of the
strategic interactions between prosecutors and defendants. Specifically, it overlooks the fact that the prosecutor cannot
possibly take all defendants to trial.
The prosecutorial resource constraint is commonly recognized. Harvard law professor William Stuntz has noted that “due
to docket pressure, prosecutors lack the time to pursue even some winnable cases,” and that “prosecutors in most jurisdictions have more cases than they have time to handle them.” This resource constraint is commonly invoked as the most
persuasive justification for the plea bargain institution. But recognizing the resource constraint does more than justify the
plea bargain system as a cost-saving device. It also raises a fundamental paradox: If the prosecutor has enough resources
to take only very few defendants to trial, how can her threats to take all defendants to trial induce them to plea? Why
does it matter that prosecutors can select the sentence if, because of “extreme docket pressure,” they cannot make good
on their threat to pursue the case all the way to the verdict and sentence? The resource constraint can potentially undermine the credibility of the prosecutor’s threat. Stated metaphorically, if you are facing off against a multitude of opponents and have only enough ammunition to strike one or very few of them, how can you succeed in having them all surrender? Why, in other words, do prosecutors succeed in extracting favorable plea bargains from a large majority of defendants when their threats against defendants are undermined by severe budget constraints?
This paradox is fundamental because it has implications for both sides of the plea bargain debate. For supporters who
believe that “more choice is better,” the credibility paradox suggests that, for most defendants, plea bargains are not an
additional option. Instead, because the trial option realistically applies to only a small fraction of defendants, the plea bargain replaces a no-prosecution option. Because of prosecutors’ resource constraint, these defendants would not have
been prosecuted at all. A plea bargain, it turns out, is not an improvement for them.
For the opposition who believe that plea bargains are coercive, the credibility paradox raises a puzzle: Why do so many
defendants accept stiff plea bargains when the alternative is no prosecution? If the resource-constrained prosecutor does
not have a credible threat to take them to trial, why do defendants plead guilty? Why, in other words, is it commonly perceived that prosecutors have credible threats to go to trial?
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_______. On Balance, Plea Bargaining Does Not Help Defendants (Prisoner’s Dilemma).
Olin in 2002,
Dirk Olin *National Editor at The American Lawyer+. “Crash Course; Plea Bargain.” The New York Times Magazine.
September 29, 2002. http://www.nytimes.com/2002/09/29/magazine/the-way-we-live-now-9-29-02-crash-course-pleabargain.html. Accessed December 5, 2010.
From 'Law's Order,' by David Friedman, of the Santa Clara University School of Law
For a real prisoner's dilemma involving a controversial feature of our legal system, consider plea bargaining.
The prosecutor calls up the defense lawyer and offers a deal. If the client will plead guilty to second-degree murder, the
district attorney will drop the charge of first-degree murder. The accused will lose his chance of acquittal, but he will also
lose the risk of going to the chair.
Such bargains are widely criticized as a way of letting criminals off lightly. Their actual effect may well be the opposite—to
make punishment more, not less, severe. How can this be? A rational criminal will accept a plea bargain only if doing so
makes him better off—produces, on average, a less severe punishment than going to trial. Does it not follow that the existence of plea bargaining must make punishment less severe?
To see why that is not true, consider the situation of a hypothetical district attorney and the defendants he prosecutes.
There are 100 cases a year; the D.A. has a budget of $100,000. With only $1,000 to spend investigating and prosecuting
each case, half the defendants will be acquitted. But if the D.A. can get 90 defendants to cop pleas, he can concentrate his
resources on the 10 who refuse, spend $10,000 on each case and get a conviction rate of 90 percent.
A defendant faces a 90 percent chance of conviction if he goes to trial and makes his decision accordingly. He will reject
any proposed deal that is worse for him than a 90 percent chance of conviction but may well accept one that is less attractive than a 50 percent chance of conviction, leaving him worse off than he would be in a world without plea bargaining. All
defendants would be better off if none of them accepted the D.A.'s offer, but each is better off accepting. . . . Individual
rationality does not always lead to group rationality.
*Ellipsis in original+
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_______. People Plead Guilty So They Can Go Home.
PBS.org in 2004,
Introduction for “The Plea” on Frontline. June 17, 2004. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/synopsis.html. Accessed December 7, 2010.
"One reason that a lot of people plead guilty is because they're told they can go home that day, because they will get probation," says Steve Bright, a defense attorney and law professor who serves as director of the Southern Center for Human
Rights. "What they usually don't take into account is that they are being set up to fail."
Bright in 2004,
Stephen Bright *Professor of Law at Harvard and Yale; Director of the Southern Center for Human Rights in Atlanta+.
“The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
STEVE BRIGHT: One reason that a lot of people plead guilty is because they're told that they can go home that day because they'll get probation. What they usually don't take into account is that they're being set up to fail.
JUDGE: —sentence you to serve five years in the state penitentiary. Going to allow you to serve that sentence on probation, with credit for the three months that you've already served.
NARRATOR: There are about four million people on probation across the United States, offenders who live in the community under supervision.
JUDGE: —pay a fine as to each count—
NARRATOR: Among their obligations, they often have to pay fines, court charges, probation fees and for different treatment programs that they must attend, all of which constitutes a sizable source of revenue for local governments.
JUDGE: —also impose a fine in the amount of $1,000 plus costs and surcharge and also order that you—
STEVE BRIGHT: Many of these people are poor. They're destitute. They have no money at all, and yet they're going to be
told to pay a fine. They're going to be told to pay a fee to a probation officer every month—I mean, all sorts of consequences that are going to flow. And perhaps the one that's least understood is that the failure to meet these payments
and meet the conditions of probation is going to bring that person right back into court, and they're going to face probably
more time in prison than they did originally because now they're going to be punished for violating their probation.
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_______. Plea Bargaining Creates A Conflict Of Interest For Attorneys And Judges.
Olin in 2002,
Dirk Olin *National Editor at The American Lawyer+. “Crash Course; Plea Bargain.” The New York Times Magazine.
September 29, 2002. http://www.nytimes.com/2002/09/29/magazine/the-way-we-live-now-9-29-02-crash-course-pleabargain.html. Accessed December 5, 2010.
Schulhofer and Alschuler are among the strongest academic critics of the practice, emphasizing the economic motivation
behind it. ''Court-appointed defenders are typically paid for only the first 15 or 20 hours' worth of work—and prosecutors
have a strong incentive not to lose,'' Schulhofer says. ''This is a conflict of interest problem.''
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 24. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense lawyers. But is it proper for a
government that is constitutionally required to respect the right to trial by jury to use its charging and sentencing powers
to pressure an individual to waive that right? There is no doubt that government officials deliberately use their power to
pressure people who have been accused of crime, and who are presumed innocent, to confess their guilt and waive their
right to a formal trial. We know this to be true because prosecutors freely admit that this is what they do.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. “Debating the Pros and Cons of Plea Bargaining.” The Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
Not all reasons for plea bargaining are economic. Judges want to move cases, prosecutors seek a high conviction rate,
public defenders desire relief from crushing caseloads, and private defense counsel may have an economic incentive if
their fee is the same whether the defendant pleads or goes to trial. And another weakness is “people don’t want to talk
about plea bargaining and how it affects people who would be exonerated at trial,” *Albert+ Alschuler *the Julius Kreeger
Professor of Law and Criminology at the University of Chicago Law School+ said.
*Brackets inserted for clarity+
Schulhofer in 2004,
Stephen Schulhofer *Professor of Law at New York University+. “The Plea”. Frontline. June 17, 2004. Transcript. Written,
Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
A lawyer who goes to trial has a strong duty to investigate the case, to interview witnesses, to look for defenses, to prepare for cross-examination. A lawyer who plans to plead guilty can make a tactical judgment that it's not worth his time.
So in effect, the defendant not only waives his right to a public trial and all that that entails, he also, in practice, is waiving
his right to legal research and to thorough factual investigation by his own lawyer.
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_______. Plea Bargaining Takes Power From The Judge And Gives It To The Prosecutor.
Time in 1978,
“Is Plea Bargaining a Cop-Out?” Time. August 28, 1978. http://www.time.com/time/printout/0,8816,916340,00.html.
Accessed December 5, 2010.
Presumably, judges should decide sentences. "After all, they are the impartial figures in the System," says Yale Law School
Professor Abraham Goldstein. But in plea bargaining it is generally the prosecutor and not the judge who in effect decides
whether and for how long a defendant is going to jail. Indeed, American Bar Association standards forbid judges to participate in bargaining, because the defendant would feel coerced to accept the judge's recommendation. Whether judges do
participate varies from jurisdiction to jurisdiction. Often, says Alschuler, they do it implicitly, with veiled threats, cajolery,
hints, nods and winks.
Reformers like Alschuler and Morris think that judges should be involved in plea bargaining. Rather than prosecutors making deals based on a "rap sheet" and an arrest report, negotiations should be done out in the open, with the defendant
present and with more thorough pre-sentence investigation. Others question whether judges are any less arbitrary than
prosecutors and look to mandatory sentences fixed by legislatures as the answer.
Gronke in 2010,
Alex Gronke *Reporter+. “Forget ‘White Boys’—The Real Plea Bargaining Story.” MIJE.org. October 13, 2010.
http://mije.org/health/forget-white-boys-real-plea-bargaining-story. Accessed December 5, 2010.
Even as sentencing guidelines increasingly limit judicial autonomy, prosecutors enjoy tremendous leeway in the deals they
make with defendants in return for guilty pleas. “Plea bargaining by its nature, is done behind the scenes,” said Barry Krisberg, a criminologist at the University of California’s Berkeley Center for Criminal Justice. “It’s one of the least understood
areas of the criminal justice system.”
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_______. Plea Bargaining Guarantees That Innocent People Are Punished.
Kinsley in 2002,
Michael Kinsley *Columnist for the Washington Post and Founder Editor of Slate+. “Why Innocent People Confess.”
Slate.com. December 12, 2002. http://www.slate.com/id/2075319/. Accessed December 4, 2010.
In 1978 Professor John Langbein, now of Yale Law School, wrote a dazzling and soon-famous article in the Public Interest
called "Torture and Plea Bargaining." Langbein compared the modern American system of plea bargaining to the system of
extracting confessions by torture in medieval Europe. In both cases, the controversial practice arose not because standards of justice were too low, but because they were too high. In medieval Europe, a conviction for murder required either
two eyewitnesses or a confession by the perpetrator. This made it almost impossible to punish the crime of murder, which
was an intolerable situation. So, torture developed as a way to extract the necessary confessions.
Plea bargaining evolved the same way, Langbein explained. As our official system of justice became larded with more and
more protections for the accused, actually going through the process of catching, prosecuting, and convicting a criminal
the official way became impossibly burdensome. So, the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a trial. Or, to put it in a more sinister way: You get a heavier sentence if you insist on
asserting your constitutional rights to a trial, to confront your accusers, to privacy from searches without probable cause,
to avoid incriminating yourself, etc.
Essentially, 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, conservatives bemoaning its coddling
of criminals). In this real American justice system, your constitutional rights are worth, at most, a few years off your sentence.
Plea bargaining might also be thought of as an insurance policy. Insurance is a way of trading the risk of a large bad outcome (your house burns down and you're out $100,000) for the certainty of a smaller bad outcome (a bill arrives and
you're out $850). Plea bargaining is a way of trading the risk of 20-years-to-life for the certainty of five-seven. But by creating this choice, and ratcheting up the odds to make it nearly irresistible, American justice virtually guarantees that innocent people are being punished.
Kinsley in 2002,
Michael Kinsley *Columnist for the Washington Post and Founder Editor of Slate+. “Why Innocent People Confess.”
Slate.com. December 12, 2002. http://www.slate.com/id/2075319/. Accessed December 4, 2010.
But for every one criminal conviction that comes after a trial, 19 other cases are settled by plea bargain. And when, as part
of a plea bargain, innocent people confess to a crime they did not commit, that isn't a breakdown of the system. It is the
system working exactly as it is supposed to. If you're the suspect, sometimes this means agreeing with the prosecutor that
you will confess to jaywalking when you're really guilty of armed robbery. Sometimes, though, it means confessing to
armed robbery when you're not guilty of anything at all.
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_______. Plea Bargaining Is A Form Of Coercion.
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
Those are questions few bother to ask anymore, says John Langbein, a professor of law and legal history at Yale, and an
outspoken critic of the system.
"Plea bargaining works by threat, and it goes like this: 'Oh, you want to exercise your constitutional right to a jury trial?
Please be our guest. But understand that if you exercise that right we will punish you much more severely,' " he says. "In
effect, that means we are punishing you twice. Once for what you did and once for having the temerity to exercise your
right to face a jury."
To Langbein and other critics, the gap in sentences handed to those who co-operate with prosecutors, versus those who
maintain their innocence and go to trial, illustrates a form of coercion that underlies practically every serious prosecution
in Canada and the U.S. Perhaps the most famous example unfolded in the late 1970s, in the case of Paul Lewis Hayes, a
small-time American fraudster and petty criminal. Hayes already had two felony convictions on his record when he was
caught forging a cheque for US$88.30. Prosecutors told Hayes he would get a five-year prison term if he pleaded guilty,
but if he chose to go to trial, he would be indicted under Kentucky's Habitual Criminal Act, which carried a mandatory sentence of life in prison. Hayes refused to accept a five-year term for an $88-crime. He was convicted as a habitual offender
and sentenced to life in prison.
Hayes argued all the way to the Supreme Court that his sentence was unconstitutional, and represented a punishment for
exercising his right to a jury trial. But in a watershed 1978 decision, the Court ruled that since Hayes was free to accept or
decline the state's offer, and knew the potential consequences of each option, there was no coercion. Hayes has been in a
Kentucky prison ever since.
Schulhofer in 2004,
Stephen Schulhofer *Professor of Law at New York University+. “The Plea”. Frontline. June 17, 2004. Transcript.
Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
Innocent people are convicted at trial. So this happens at trial. People who defend plea bargaining will say, "Well, sending
people to trial doesn't necessarily guarantee perfect results." But what the guilty plea system guarantees is that when you
have miscarriages of justice, the victim of it is going to face staggering sentences because those sentences are not a consequence of justice. Those sentences are a consequence of the need to grease the wheels of the system. So they become
the example or they become the grease or they become the object lesson. And what we see, the next time around, the
prosecutors says, "Well, you want to go to trial, that's your right. You can be just like Mrs. So-and-So. And look what happened to her."
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_______. Plea Bargaining Is A Form Of Coercion.
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
But the legal and moral questions get even murkier when the defendant in question is not only giving up their right to a
trial, but is also offering up evidence to help the state convict another, less co-operative defendant. Such was the case
with Karla Homolka, who testified against her former husband Paul Bernardo in the kidnapping rape and murder of two
Ontario schoolgirls in the early 1990s, serving just 12 years for the horrific crimes she helped perpetrate. The question for
lawyers and judges is this: when the risks of going to trial are so huge that a guilty plea seems far preferable, how reliable
is the testimony extracted under threat?
And the threat can be enormous. Consider the case of Robert H.—an unidentified man whose case was first described in a
1994 paper for the University of Chicago Law Review by Albert Alschuler and Andrew Deiss. According to the authors, Robert spent six months in the early 1990s in an Atlanta jail without any formal charges before meeting with a public defender. On the day she met him, she told him he'd been charged with a felony, but if he pleaded guilty he could go home that
day because of the time he'd already served. If he pleaded innocent, he'd be kept in custody for at least another year
awaiting trial. Not surprisingly, Robert pleaded guilty. Only later did authorities realize that due to a bureaucratic error,
he'd been mistaken for someone else and should never have been arrested, let alone convicted.
Robert H.'s case illustrates Langbein's central objection to the coercive nature of such plea bargains. "If you let me, the
prosecutor, increase the sentencing disparity *between a guilty plea and a guilty verdict+ enough, I can get anyone to concede guilt to almost anything," he says. "Suppose I've got 20 bishops ready to testify that I didn't overstay the parking meter. But the choice is plead guilty, pay a fine or face a possible death sentence. What do you think? I plead guilty."
If Robert H. could be strong-armed into bearing false witness against himself, defence lawyers ask, why should we believe
that someone like David Radler, choosing between the threat of life in a U.S. prison or 29 months in a cushy Canadian facility, wouldn't opt to bear false witness against someone else? These bargains are especially dangerous in white-collar
cases, Langbein says, because formerly successful executives face an overwhelming temptation to tell prosecutors exactly
what they want to hear.
"The problem is, many of the laws these people are being prosecuted under are vague, and are not understood to be
breaches of the law. Then the prosecutor comes along and says, I'm going to press charges and put you in the slammer—
and in the United States, because of our sentencing savagery in such cases, that means forever and ever—unless, that is,
you agree to incriminate yourself and whoever it is I really want to nail—whether that's Ken Lay or Jeff Skilling or whoever." Both Canada and the United States are based on a legal tradition that envisions a jury of lay people as a check against
potential abuses of power by the state. But plea bargaining concentrates all of that power into the hands of individuals
who are, in the U.S., politicians, and in Canada, civil servants.
"What it does is defeat the age-old wisdom that led us to divide the charging and investigative function on one hand from
our determinative and sentencing functions," Langbein says. "What's happened is the prosecutor has combined all those
functions in one set of hands: he is the investigative officer, the prosecutorial officer, the determinative officer and the
sentencing officer." Police, judge and jury in one incredibly powerful office.
*Brackets in original+
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_______. Plea Bargaining Punishes People Who Exercise Their Right To Trial By Jury.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.” Regulation. Fall 2003. pp. 26-27. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
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. Although the fictional nature of that proposition has been apparent to many for some
time now, what is new is that more and more people are reaching the conclusion that it is intolerable. Chief Judge William
G. Young of the Federal District Court in Massachusetts, for example, 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, brutal, and incontrovertible.… Today, under the Sentencing Guidelines regime with its vast shift of
power to the Executive, that disparity has widened to an incredible 500 percent. As a practical matter this means,
as between two similarly situated defendants, that if the one who pleads and cooperates gets a four-year sentence, then the guideline sentence for the one who exercises his right to trial by jury and is convicted will be 20
years. Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the right to an
adjudication of guilt by one’s peers. 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. It is the
sheerest sophistry to pretend otherwise.
*Ellipsis in original+
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
In 2001, Chief Judge William Young of the Federal District Court in Massachusetts decried the fact that thousands are bullied into guilty pleas each year. "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. It is the sheerest sophistry to pretend otherwise."
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_______. The Court System Isn’t Like What You See On Television.
Oberman in 2004,
Jonathan Oberman *Professor at Cardozo School of Law+. “The Plea”. Frontline. June 17, 2004. Transcript.
Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
Happens every day in every courtroom in the United States. People come into arraignment, they meet their attorney, they
have a brief conversation, they're informed of the charges, they're informed of what they could plead guilty to, possibly to
get out of jail that night, possibly not. They have to make a decision. That's the truth. Less interesting story than the one
that Law and Order tells people, but that's the truth.
Bright in 2004,
Stephen Bright *Professor of Law at Harvard and Yale; Director of the Southern Center for Human Rights in Atlanta+.
“The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
Well, it's not unusual for lawyers who handle a high volume of cases to not know their clients' names. I go to courtrooms
all the time where you see the defense lawyers coming in, 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.
Schulhofer in 2004,
Stephen Schulhofer *Professor of Law at New York University+. “The Plea”. Frontline. June 17, 2004. Transcript.
Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
The public believes that every criminal defendant has a right to the effective assistance of counsel. And that is just so far
out of touch with reality, it's hard to even begin describing it.
Bright in 2004,
Stephen Bright *Professor of Law at Harvard and Yale; Director of the Southern Center for Human Rights in Atlanta+.
“The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
It doesn't matter that the lawyer may be conscientious, just the system makes it impossible for that lawyer to do his or her
job. People may be not guilty, people may be guilty of some less serious behavior than what they're accused of. Many of
the people that come into the court system are mentally ill, may have been put up to it by somebody else. The lawyer
won't know any of that.
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_______. Life After A Guilty Plea Ain’t Easy.
Green in 2004,
Bruce Green *Professor of Law at Fordham University+. “The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced,
and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
There's a lot of harsh consequences. You may not be eligible for public housing. You may lose the right to vote. You may
not be able to get certain employment. If you're an immigrant, you may be deported. So it's no great shakes to get a conviction and probation.
Bright in 2004,
Stephen Bright *Professor of Law at Harvard and Yale; Director of the Southern Center for Human Rights in Atlanta+.
“The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
The courts are sort of like finance companies now. They're trying to collect all this money from people, and of course, the
people don't have any. I mean, this is like trying to get blood out of a turnip. I mean, we're talking about the poorest people in our society, who are really barely surviving. And so they can't pay, so the probation officer renegotiates with them
and sometimes even go back to court and extend the probation. And so they're always paying. And it really is very much
like a high-interest loan. I mean, it's like you never get it paid off.
Alschuler in 2004,
Albert Alschuler *Professor of Law, University of Chicago+. “The Plea”. Frontline. June 17, 2004. Transcript. Written,
Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed December 7, 2010.
It's very difficult once you've pleaded guilty. The guilty plea sort of puts a lid on the box, regardless of what's inside the
box. It's a system that's designed to keep the truth from coming out. Plea bargaining has nothing to do with justice. It has
to do with convenience, expediency, making the life of prosecutors and defense attorneys easier and more profitable. It's
designed to avoid finding out the truth. It's designed to avoid hearing the defendant's story.
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January 2011: Release 1: Plea Bargaining
_______. Federal Plea Bargains Come With A Hitch: Waive The Right To DNA Testing.
The New York Times in 2010,
Editorial. “Truth in Plea Bargains.” The New York Times. December 4, 2010.
http://www.nytimes.com/2010/12/05/opinion/05sun3.html. Accessed December 5, 2010.
The value of DNA testing to clear the unjustly convicted is well known. That did not stop the Bush administration from
bullying defendants who pleaded guilty to waive their right to seek such testing. Attorney General Eric Holder made the
right choice last week, ordering the Justice Department to drop this policy.
In 2004, over the vigorous objection of the Bush Justice Department, Congress passed the Innocence Protection Act, intended to ensure that inmates challenging their convictions had access to DNA testing. Language added to the measure at
Republican insistence also allows defendants to waive their right to DNA testing. The Republicans argued that would cut
down on frivolous requests for testing and court challenges.
The full significance of the waiver provision emerged only last year. The Washington Post reported that soon after the law
passed, the Bush Justice Department sent a memo to the nation’s 94 United States attorneys directing prosecutors to insist that defendants pleading guilty as part of a plea bargain relinquish their right to DNA testing even if new evidence
emerged.
This not only ignored the problem of false confessions, it cynically gutted the intent of the 2004 law.
The fact is that innocent people sometimes plead guilty because of coercive interrogations or — in the case of plea bargains — to avoid a likely conviction at trial and a far tougher sentence. Peter Neufeld, co-director of the Innocence Project,
says that 19 of the 261 people exonerated so far through DNA testing had pleaded guilty to crimes they did not commit.
Not every United States attorney has followed the Bush-era directive, but the DNA waivers reportedly have been part of
the standard plea agreement filed in federal court by prosecutors in Manhattan, the District of Columbia and Virginia, and
they have been used with some frequency in many other jurisdictions.
As a practical matter, most violent crimes in which DNA evidence figures, like murders and rapes, are prosecuted in state
courts. But federal prosecutors are increasingly going after violent gangs and drug crimes. And the importance of the Innocence Protection Act is destined to grow as more sophisticated DNA testing becomes available to help solve a broader
array of crimes. Mr. Holder has sent a valuable message to all prosecutors that while the finality of convictions is important, justice must take priority.
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PFDebate.com | Crossfire Briefs > PRO
January 2011: Release 1: Plea Bargaining
_______. Plea Bargains Have Been Poorly Investigated.
Gronke in 2010,
Alex Gronke *Reporter+. “Forget ‘White Boys’—The Real Plea Bargaining Story.” MIJE.org. October 13, 2010.
http://mije.org/health/forget-white-boys-real-plea-bargaining-story. Accessed December 5, 2010.
*Barrry+ Krisberg *a criminologist at the University of California’s Berkeley Center for Criminal Justice+ said that there’s a
reason plea bargaining remains poorly investigated by criminal justice scholars, not to mention resource-starved news
organizations. The details of these deals are often scrawled in the margins of an assistant District Attorney’s notebook
rather than entered in the public record, Krisberg said. He pointed to a study of gun charges in Alameda County. Prosecutors would write “defendant swallowed the weapon” in their notes to indicate that a gun charge had been dropped in
exchange for a guilty plea. These deals are not part of the vast databases of criminal justice statistics maintained by the
state and the federal governments.
Digging into the documents in the Allegheny County District Attorney’s office is what Sonya Ross, the race and ethnicity
editor for the Associated Press in Washington D.C., would advise local reporters to do. Although, she allows that few news
organizations still possess the editorial muscle to pull off an investigation of that scale. This wasn’t always the case. Almost
20 years ago, the San Jose Mercury News reviewed 700,000 California criminal cases and found that whites were more
likely to have their cases dropped than black and brown defendants.
*Brackets inserted for clarity+
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. The Criminal Justice System Would Collapse Without Plea Bargaining.
PBS.org in 2004,
Introduction for “The Plea” on Frontline. June 17, 2004. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/synopsis.html. Accessed December 7, 2010.
To overworked and understaffed defense lawyers, prosecutors, and jurists, plea bargains are the safety valve that keeps
cases moving through our backlogged courts.
"The system would collapse if every case that was filed in the criminal justice system were to be set for trial," says Judge
Caprice Cosper of the Harris County Criminal Court in Houston, Texas. "The system would just entirely collapse."
Cosper in 2004,
Caprice Cosper *Judge, Harris County Criminal Court+. “The Plea”. Frontline. June 17, 2004. Transcript. Written, Produced,
and Directed by Ofra Bikel. PBS.org. http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html.
Accessed December 7, 2010.
The system would collapse. If every case that was filed in the criminal justice system were to be set for trial, the system
would just entirely collapse.
Time in 1978,
“Is Plea Bargaining a Cop-Out?” Time. August 28, 1978. http://www.time.com/time/printout/0,8816,916340,00.html.
Accessed December 5, 2010.
The strongest argument for deal making, however, is sheer necessity. Approved of by Congress and the President's Commission on Law Enforcement and Administration of Justice, plea bargaining has been condoned by the U.S. Supreme Court
as "essential." It is widely accepted that without deals between the prosecutor and the accused, time-consuming trials
would cause many courts to choke on overcrowded dockets. Chief Justice Warren Burger has said that even a 10% reduction in plea bargaining would double the number of trials.
Maich in 2007,
Steve Maich *Business Columnist+. “The Morality of Copping a Plea.” Macleans.ca. July 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed December 8, 2010.
Most legal professionals have come to grudgingly accept the system, warts and all. But that acceptance seems based more
on practicality than principle. In 1975, the Law Reform Commission of Canada called plea bargaining "something for which
a decent criminal justice system has no place." By 1989, faced with a system bogging down under its own weight, its position had completely reversed: "plea negotiation is not an inherently shameful practice," the commission concluded. Most
legal professionals concede that rampant plea bargaining plays havoc with legal statistics, as defendants are routinely
overcharged and end up convicted of lesser offences. Most even agree that prosecutors have too much leeway in the
games they can play to extract guilty pleas, such as withholding potentially exculpatory evidence—a tactic sanctioned by
the U.S. Supreme Court in 2002. Still, they say, the courts would grind to a halt without plea bargains.
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. Even Without Plea Bargaining Most Cases Would Not Go To Trial.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. “Debating the Pros and Cons of Plea Bargaining.” The Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
Martin Heumann, chair of the Rutgers University Political Science Department, disputed Alschuler’s contentions.
“First and foremost, plea bargaining is not a function of case pressure. This is a huge myth that continues to bedevil analyses,” he said. If courts had unlimited resources to hold trials, 70 to 80 percent of all cases would still end up with pleas,
he said.
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. Plea Bargaining Does Not Mean Easier Sentences For Defendants.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. “Debating the Pros and Cons of Plea Bargaining.” The Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
Nor is it clear that plea bargaining means an easier sentence for defendants.
“It’s not necessarily so that there is a penalty for trial. The data is not clear,” *Martin+ Heumann *chair of the Rutgers University Political Science Department+ said. “Cases are different that go to trial than those that plea.”
Many programs aimed at circumventing plea bargains wind up having the functional equivalent of pleas, he said. Heumann also downplayed criticisms that defendants see plea bargaining as unfair.
Studies, he said, suggest inmates view it as a game. “If you study defendants’ perceptions, most of them want to plea,” he
added. “While there’s much rhetoric about being railroaded into a plea, they don’t want to try again.”
Other observations, he said, include that plea practices vary greatly around the country and that sentencing guidelines
and other changes have switched discretion from judges to prosecutors, who can determine sentence severity by how
they charge a case.
But plea bargaining remains an essential part of the system and essential to handling the huge crush of cases. Heumann
quoted one prosecutor who was criticized for plea bargaining as saying “that’s like accusing me of sleeping with my wife.”
*Brackets inserted for clarity+
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. Mandatory Sentencing Guidelines Make Plea Bargaining More Important.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. “Debating the Pros and Cons of Plea Bargaining.” The Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
Plea bargaining is also providing flexibility in a system where judges are losing discretion to minimum mandatory sentencing laws and other changes.
“Getting rid of plea bargaining in an environment where judges have less and less discretion is scary,” *Miami attorney
Scott+ Fingerhut said.
Florida law, he said, has evolved where judges have little if any participation in plea bargaining. Even if judges offer “gentle
wisdom” to a defendant about a plea bargain, that can be grounds for a reversal.
Mandatory sentences were a concern of some audience members, and the first question dealt with the apparent incompatibility of guidelines and plea bargains.
*Albert+ Alschuler *the Julius Kreeger Professor of Law and Criminology at the University of Chicago Law School+ agreed,
saying federal sentencing guidelines are the best argument he knows for plea bargaining.
He also questioned the rationale, saying guidelines were intended to reduce the discretion of judges, but have had the
effect of increasing the discretion of prosecutors, who have a vested interest in the case.
Fingerhut noted that guidelines were begun as a way to guarantee uniformity in sentencing, but now are used as a way to
increase punishment.
*Ellipses inserted for clarity+
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. The Justice System Is Different Than When The Constitution Was Drafted.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. “Debating the Pros and Cons of Plea Bargaining.” The Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
The justice system is far different, *Miami attorney Scott+ Fingerhut said, than when the framers drew up the Constitution.
Then, jury trials were the norm and pleas were rare. Now trials are the rarity, and it’s impossible to tell how the courts are
functioning by looking only at trials.
“What changed was not the Bill of Rights or the Constitution. What changed were the times, how we perceive ourselves
and our lives,” he said. “Over the course of time, where Europe evolved to a *judicial+ inquisitorial system, America went
to an adversarial model.”
*First set of brackets inserted for clarity; Second set of brackets in original+
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
One argument against plea bargaining is that the Sixth Amendment guarantees a right to a jury trial, not to a faster, more
potentially error-prone procedure like plea bargaining. As Lynch has written, “The Framers of the Constitution were aware
of less time-consuming trial procedures when they wrote the Bill of Rights, but chose not to adopt them.” But that does
not prove plea bargaining is unconstitutional. After all, at the time the Sixth Amendment was written, there were no Federal Rules of Evidence, no Miranda rights, no court-appointed attorneys, and no bench trials. The Framers’ notion of a “fair
trial” differs greatly from ours. The Constitution’s limits on criminal procedure are certainly indispensable protections for
individual liberty, a great advance over British rule, and a testament to the Founders’ greatness — but they only go so far.
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. Trial By Jury Is A Civil Right That Can Be Waived By The Defendant.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 29. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
The U.S. Supreme Court held in the 1979 case Gannett Co. Inc. v. 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.” That seems reasonable; while
requiring jury trials may make sense as a matter of policy, it is not an inalienable right. Life, liberty, and the pursuit of happiness are inalienable by nature. But the right to a jury is a civil right, not a natural right. If defendants can waive personal
jurisdiction, and waive their right to an attorney, there seems little sense in saying that the jury right is inalienable. Today,
it seems to be universally conceded that the right to a jury trial is alienable, and nothing in the Constitution says otherwise. It follows that a defendant can “sell” his right to trial if he so chooses. And at least some defendants — often guilty
ones — benefit from doing so.
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. Criticisms Of Plea Bargaining Are Reasons To Reform, Not Abolish, Plea Bargaining.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 31. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
Innocent defendants are convicted all too often, but if defendants are so afraid of trials that they regularly plead guilty to
crimes they did not commit in order to avoid a trial, then that is an indictment of the trial system, not plea bargaining. And
while it is true that plea bargains are often the product of overbearing prosecutorial bargaining tactics, that is a criticism of
the negotiating process, not of the right to make the contract. Finally, it is true that the Framers included a right to trial by
jury among our vital constitutional guarantees, but that does not mean defendants lack the freedom to waive that right or
trade it to the state in exchange for a lighter sentence. Mere efficiency does not justify resorting to a constitutionally
flawed procedure. But there are sufficient justifications for plea bargaining. Its flaws are procedural, not constitutional,
and it needs reform, not abolition.
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. Plea Bargaining Abuses Do Not Demonstrate That Plea Bargaining Is Bad.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
Plea bargaining, like all government activities, is liable to abuse. Defendants, often too poor to afford their own attorney,
unfamiliar with court proceedings, and threatened by the full force of the prosecutor’s office, are likely to be very intimidated. They find themselves confronted by experienced and confident officers of the state, in suits and robes, speaking
the jargon of the law and possessing wide discretion to engage in hardball tactics before trial. Prosecutors know how to
exploit limits on habeas corpus rights, mandatory sentencing rules, and loopholes that allow evidence collected under
questionable circumstances to be admitted. All of this would scare even the most hardened criminal, let alone an innocent
defendant. And it could intimidate a defendant into accepting a plea bargain that may not be truly just.
Yet the mere fact that a process can be abused does not necessarily make that process unconstitutional or immoral. Plea
bargaining is rife with unfair prosecutorial tactics, and it needs reform. But the process itself is not unconstitutional, nor
does it necessarily violate a defendant’s rights.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
In recent decades, courts have upheld extreme and unfair prosecutorial tactics in negotiating plea bargains. Last year, in
United States v. Ruiz, the U.S. Supreme Court held that the Constitution does not require prosecutors to inform defendants during plea bargaining negotiations of evidence that would lead to the impeachment of the prosecution’s witnesses.
As Timothy Lynch noted in his 2002 article “An Eerie Efficiency,” this rule would allow the prosecution to not disclose during plea negotiations that its only witness was too drunk at the time of the crime to provide any reliable evidence. Such
tactics are unfair. If a plea bargain is a contract, it should be subject to the same rules that apply to other contracts, including the requirement that parties disclose relevant information. If a car dealer must tell you that the car he sells you is defective, prosecutors ought to be required to disclose when their cases are defective. But the sad fact that such inappropriate bargaining tactics exist does not obviate the freedom of contract itself.
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January 2011: Release 1: Plea Bargaining
_______. Plea Bargaining Abuses Do Not Demonstrate That Plea Bargaining Is Bad.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 31. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
Some commentators claim that plea bargaining creates an incentive system designed to discourage the exercise of constitutionally protected rights. If the defendant faces a far greater potential sentence at trial than through a plea bargain, this
increases the incentive to bargain, which increases the potential that innocent parties will be sent to prison for crimes
they did not commit.
Government policies that chill the exercise of constitutional rights ought to be regarded with great suspicion. But they are
not per se unconstitutional or unjust. Government, like private businesses, often purchases the rights of citizens: members
of the military are forbidden to criticize the president, for instance, and private contractors doing business with the government must often comply with “living wage” requirements. Unwise as those policies may be, they are not a violation of
anybody’s rights, because they are based on the parties’ consent. If the tactics used to induce consent are so overbearing
as to obviate that consent, then the procedure should be reviewed under due process standards and, in a case in which
the prosecution’s tactics are fraudulent, they should be struck down. But where that is not the case, a plea bargain does
not itself violate the Constitution.
McSpadden in 2004,
Michael McSpadden *Judge, Harris County Criminal Court+. “The Plea”. Frontline. June 17, 2004. Transcript. Written,
Produced, and Directed by Ofra Bikel. PBS.org. http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html.
Accessed December 7, 2010.
A lot of people call it a necessary evil. I look at it as a necessary component in our criminal justice system. But you have to
understand that a plea bargain only works if you have experienced, competent defense attorneys, experienced, competent prosecutors and a judge who will oversee and make sure this is done correctly.
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PFDebate.com | Crossfire Briefs > CON
January 2011: Release 1: Plea Bargaining
_______. The DNA Waiver Requirement Has Been Rescinded; It Is Not Intrinsic To Plea Bargaining.
The Washington Post in 2010,
Editorial. “A Return to Fairness.” The Washington Post. November 28, 2010. http://www.washingtonpost.com/wp-dyn/
content/article/2010/11/27/AR2010112703216.html. Accessed December 8, 2010.
During the early part of this decade, the Bush administration fought vigorously to undermine legislation intended to ensure that inmates insisting on their innocence had reasonable access to post-conviction DNA evidence. When such a bill
appeared near passage, the administration successfully pushed a provision that allows defendants to waive the right. The
administration then instructed prosecutors to insist on such waivers in all plea bargains - to force defendants, as a condition of any plea bargain, to promise not to seek potentially exonerating DNA evidence down the road. The U.S. attorney's
offices in the District and in Alexandria followed the directive, although not all federal prosecutors abided by the mandate.
There was a superficial logic to this for those who believe that only the guilty confess. In fact, though, some innocent suspects are bullied or coerced into admissions of guilt. Defendants sometimes accept pleas to avoid the death penalty or
other stiff sentences. The Bush administration decision to force some defendants to waive their rights to DNA evidence
left open the possibility of miscarriages of justice.
Attorney General Eric H. Holder Jr. has rightly reversed this wrongheaded, callous policy for an approach that better serves
the interests of justice. Under new guidelines, federal prosecutors will no longer be required to seek DNA waivers from
those entering plea deals, and such waivers will no longer be included automatically in standard plea agreements. Prosecutors retain some wriggle room in "extraordinary" circumstances, but that determination must be made case by case.
DNA has become an invaluable tool and has been instrumental in proving the innocence of some 250 wrongly convicted
defendants—some of whom had confessed and some of whom were sitting on death row. It is, by and large, most often
used to prove guilt. Demanding that a defendant give up the right to request evidence that could definitively determine
culpability undermines the purpose of a justice system—to ferret out the truth so that the guilty are punished and the
innocent are spared.
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January 2011: Release 1: Plea Bargaining
_______. Disparate Punishments Are Not Unconstitutional And Are Part Of The System.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific Legal Foundation+. “In Defense of Plea
Bargaining.” Regulation. Fall 2003. p. 31. http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf.
Accessed December 5, 2010.
In short, Lynch’s claim that plea bargaining is unconstitutional comes down to his complaint that “disparate punishments
for the same offense *are not+ sensible.” But similarly situated defendants who make different choices in legal strategy
often end up with different sentences. One defendant might choose to waive his right to testify, while another might exercise that right. The result might be disparate sentences, or even sentences that are insensible to outside observers. But
that choice is entirely constitutional. The courtroom may not seem like a place for haggling, but that is exactly what it is, in
both civil and criminal contexts. A civil defendant can settle his case for a certain sum; a criminal defendant for a certain
amount of time. If the calculations made by prosecutors, or plaintiffs, and defendants are influenced by fear or intimidation rather than calm deliberation, then statutory reform is certainly warranted. But nothing in the Constitution compels
it.
*Brackets in original+
Lynch in 2003,***
Timothy Lynch *Director of the Cato Institute’s Project on Criminal Justice+. “The Case Against Plea Bargaining.”
Regulation. Fall 2003. p. 25. http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf. Accessed December 5, 2010.
Paul Lewis Hayes, for example, was indicted for attempting to pass a forged check in the amount of $88.30, an offense
that was punishable by a prison term of two to 10 years. The prosecutor offered to recommend a sentence of five years if
Hayes would waive his right to trial and plead guilty to the charge. The prosecutor also made it clear to Hayes that if he did
not plead guilty and “save the court the inconvenience and necessity of a trial,” the state would seek a new indictment
from a grand jury under Kentucky’s “Habitual Criminal Act.” Under the provisions of that statute, Hayes would face a mandatory sentence of life imprisonment because of his prior criminal record. Despite the enormous pressure exerted upon
him by the state, Hayes insisted on his right to jury trial. He was subsequently convicted and then sentenced to life imprisonment.
On appeal, Hayes argued that the prosecutor violated the Constitution by threatening to punish him for simply invoking
his right to a trial. In response, the government freely admitted that the only reason a new indictment was filed against
Hayes was to deter him from exercising that right. Because the indictment was supported by the evidence, the government maintained that the prosecutor had done nothing improper. The case ultimately reached the U.S. Supreme Court for
a resolution. In a landmark 5–4 ruling, Bordenkircher v. Hayes, the Court approved the prosecutor’s handling of the case
and upheld the draconian sentence of life imprisonment. Because the 1978 case is considered to be the watershed precedent for plea bargaining, it deserves careful attention.
The Hayes ruling acknowledged that it would be “patently unconstitutional” for any agent of the government “to pursue a
course of action whose objective is to penalize a person’s reliance on his legal rights.” The Court, however, declined to
overturn Hayes’s sentence because he could have completely avoided the risk of life imprisonment by admitting his guilt
and accepting a prison term of five years. The constitutional rationale for plea bargaining is that there is “no element of
punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.”
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