West Coast 2011
January PF
West Coast
Public Forum
January 2011
Plea Bargaining Topic
West Coast .................................................................................................................................................... 1
Topic Analysis 1/2 ..................................................................................................................................... 2
Topic Analysis 2/2 ..................................................................................................................................... 3
Topic Definitions ....................................................................................................................................... 4
Pro ................................................................................................................................................................. 5
Plea Bargaining Is Widespread.................................................................................................................. 6
Plea Bargaining Is Unconstitutional .......................................................................................................... 7
Plea Bargaining Is Coercive ....................................................................................................................... 8
Plea Bargaining Is Not Free Market Choice............................................................................................... 9
Plea Bargaining Gives The State Too Much Power ................................................................................. 10
Plea Bargaining Is Racist.......................................................................................................................... 11
Plea Bargaining Hurts The Poor .............................................................................................................. 12
Plea Bargaining Causes Convictions Of The Innocent ............................................................................. 13
Plea Bargaining Hurts Deterrence........................................................................................................... 14
Con .............................................................................................................................................................. 15
Plea Bargaining Is Not Unjust .................................................................................................................. 16
Plea Bargaining Is Constitutional ............................................................................................................ 17
Plea Bargaining Is Not Coercive .............................................................................................................. 18
Defendants Have The Right To Plea Bargains ......................................................................................... 19
Plea Bargains Reduce The Cost Of Justice............................................................................................... 20
Plea Bargains Do Not Cause Disparate Sentencing ................................................................................. 21
Plea Bargaining Is Advantageous ............................................................................................................ 22
Plea Bargaining Does Not Increase Innocent Convictions ...................................................................... 23
Courts Must Approve Plea Bargains ....................................................................................................... 24
West Coast 2011
January PF
Topic Analysis 1/2
The Public Forum topic for January 2011 is “Resolved: In the United States, plea bargaining
undermines the criminal justice system. The Pro side of this resolution will argue that cutting a deal
with defendants for a reduced sentence allows for prosecutorial coercion and undermines justice. The
Con side will argue that plea bargaining is frequently a win-win situation for all involved and is necessary
to ensure the pragmatic administration of justice. This months Public Forum Briefs are intended to give
you a set of evidence to prepare and debate these questions.
TOPIC OVERVIEW
The Sixth Amendment to the constitution guarantees all criminal defendants the right to a
speedy trial by jury. This guarantee is an outgrowth of the way crimes were tried during the time of the
Framer’s – almost all crimes were decided by a jury. Despite this history, a new practice has come to
dominate American criminal justice proceedings, known as plea bargaining. In a plea bargain, the
defendant (usually via lawyer) negotiates a legally binding agreement with the prosecutor, in which the
defendant waives their right to a jury trial and instead pleads either guilty or “no contest,” in exchange
for either a reduction in the charges the defendant is facing, a reduction in the severity of their
sentence, or some other condition favorable to the defendant. This contract must be approved by the
court, and is binding on both sides.
Plea bargaining has come to almost completely define the provision of criminal justice in
America – depending on the source, between 90% and 95% of all criminal cases are resolved with a plea
bargain rather than proceeding to a full trial. Negotiating a plea bargain is also referred to as “pleading
the case out” or “copping a plea.” There are many reasons for this state of affairs. First is the simple
pragmatic reality that courts, judges, and prosecutors are frequently overwhelmed with the quantity of
cases in the system. Pleading out a case is a simple and expedient way to avoid the costs associated
with going to trial, which might take days, weeks, or even months and cost a significant amount of
taxpayer dollars.
Plea bargains also frequently benefit both the prosecutors and defendants. Prosecutors are
saved the time and hassle of going to trial, and avoid needing to prove their case beyond a reasonable
doubt to a jury – ensuring at least some punishment for defendants that might otherwise run the risk of
being acquitted. On the other side, plea bargains can be a winning situation for a defendant who would
otherwise run the risk of a much harsher sentence or charge if a jury were to find them guilty.
Despite the advantages which have driven so many cases towards being resolved by plea
bargain, the practice has many detractors. Foremost is the argument that plea bargains allow
prosecutors to coerce defendants into giving up their constitutionally guaranteed rights by threatening
much harsher sentences, or “throwing the book” at a defendant. Related is the risk that even innocent
people might be coerced into accepting a guilty plea for a lesser sentence to avoid the possibility of
being convicted by a jury for a crime they didn’t commit, and receive a much harsher penalty. A few
years in probation, for example, might be a small price to pay to avoid even the possibility of life in
prison.
The other side argues that plea bargaining is worth the risks, both because of the pragmatic
realities discussed above, and because the justice system should not infringe on the right of a defendant
to enter into a contract with the prosecutor if they think it benefits them. Defendants, under this
argument, are always free to insist on their right to a jury trial – they voluntarily agree to give up the
rights they possess to achieve a more optimal outcome.
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January PF
Topic Analysis 2/2
DEBATING THE PRO SIDE
The Pro side should start their criticism of plea bargaining by arguing that it is coercive, and
therefore an affront to justice. They should argue that while the defendant has the right to enter a
contract, they are not truly entering the agreement freely. Since the prosecutor holds all of the cards
and can hold out the threat of significantly greater punishment just because a defendant exercises their
right to a jury trial, that this is unfair. Much of this argument relies on the notion of equality – that
similarly situated defendants being tried for the same crime should receive equal sentences – not
drastically different ones just because one opts for a jury trial while another waives their rights.
Another related argument is that plea bargaining is unconstitutional. This argument derives
from the fact that the constitution guarantees a right to a jury trial – and that therefore this right is
inalienable and cannot be waived. The major difficulty with this line of argument is that the Supreme
Court has pretty definitively ruled that plea bargaining is not a violation of due process – so the Pro
needs to rely more on the argument that plea bargaining SHOULD be viewed as unconstitutional,
despite what the court says.
The Pro should also argue that plea bargaining both allows guilty people to go unpunished, and
risks coercing innocent people into pleading guilty. In the first instance, even though the state may be
able to prove a guilty party should be punished, the defendant is allowed to plea down to an offense
they might not even have committed – for example pleading a charge of murder down to manslaughter.
In theory, this allows the guilty to be punished less than justice requires. In the other instance, a
completely innocent party maybe coerced into agreeing to plead guilty because they are afraid of the
consequences should they go to trial and lose. Obviously any outcome which puts an innocent person in
prison, for example, is unjust. The Pro can also come at the problem by arguing that even if plea
bargaining is okay in theory, that it is done in a way which is manifestly unfair – such as
disproportionately resulting in harsher sentences for racial minorities or the poor.
The Pro should be prepared to answer arguments by the Con that plea bargaining is a necessary
evil to ensure the smooth administration of justice – that without plea bargaining is would be literally
impossible to try all the cases in the system, which would result in net greater inequality and injustice.
The Con may also argue that plea bargaining represents a fundamental right to enter a contract – and
that abridging it would be just as unjust, as it may be a win-win situation for all parties involved.
DEBATING THE CON SIDE
The Con should start by directly clashing with the Pro’s claim that plea bargaining is coercive.
They should argue that the defendant is never forced to enter a plea bargain – they retain the choice
under all circumstances. They are simply given inducements by the prosecutor, which they are free to
choose or not. The Con should also argue that abridging this right to waive one’s rights is unjust – after
all, a defendant may also waive their rights to a jury trial simply by pleading guilty, irrespective of
receiving a plea. They also retain the right to waive the right to counsel, the right against selfincrimination, etc…The right to a jury trial is similar, and the Con should argue that it should be able to
be sold by the defendant if they wish.
The Con should also argue for both the pragmatic and functional outcomes of plea bargaining –
it represents a huge net cost savings in time and money to prosecutors, defendants, and the court
system. And frequently, it is done in a way which benefits all parties – guilty parties who receive a lesser
sentence, and a court system which avoids the costs associated with trial.
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Topic Definitions
A plea bargain is a negotiated agreement between the defendant and prosecutor
US Legal, 2010, “Plea Bargain Law & Legal Definition,” http://definitions.uslegal.com/p/plea-bargain/
A plea bargain is a negotiated agreement between a criminal defendant and a prosecutor in which the
defendant agrees to plead "guilty" or "no contest" to some crimes, along with possible conditions, such
as attending anger management classes, in return for reduction of the severity of the charges, dismissal
of some of the charges, or some other benefit to the defendant. A defendant must uphold his or her end
of the deal, such as pleading guilty on a particular date, cooperating in the investigation of another
offense, or testifying against a co-defendant.or the plea bargain may be revoked.
Plea Bargaining is an agreement to plead guilty in order to reduce the sentence
Timothy Lynch, Cato Institute, Fall 2003, “The Case Against Plea Bargaining,” Cato,
http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf
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.”
Undermines means to weaken
Merriam-Websters, 2010, “undermine,” http://www.merriam-webster.com/dictionary/undermines
1: to excavate the earth beneath : form a mine under : sap 2 : to wash away supporting material from
under 3 : to subvert or weaken insidiously or secretly <trying to undermine his political rivals> 4 : to
weaken or ruin by degrees
Criminal Justice System means courts that deal with criminal law
US Courts, Idaho, 2010, “C,” http://www.id.uscourts.gov/terms-cd.htm
Criminal justice system- The network of courts and tribunals which deal with criminal law and its
enforcement.
Criminal justice means the legal system
Free Dictionary, 2005, “criminal justice,” http://legaldictionary.thefreedictionary.com/Criminal+justice+system
criminal justice n. a generic term for the procedure by which criminal conduct is investigated, arrests
made, evidence gathered, charges brought, defenses raised, trials conducted, sentences rendered, and
punishment carried out.
West Coast 2011
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Pro
West Coast 2011
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Plea Bargaining Is Widespread
Plea bargaining is widespread in the US
Timothy Lynch, Cato Institute, Fall 2003, “The Case Against Plea Bargaining,” Cato,
http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf
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.” Even though plea bargaining pervades the
justice system, I argue that the practice should be abolished because it is unconstitutional
Less than 10% of cases are tried – plea bargaining is rampant
Timothy Lynch, Cato Institute, Fall 2003, “The Case Against Plea Bargaining,” Cato,
http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf
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.
90% of cases are plea bargained
Paul Bergman and Sara Berman, attorneys, 2004, The Criminal Law Handbook, p. googlebooks
As criminal courts become ever more crowded. prosecutors and judges alike feel increased pressure Lo
move cases quickly through the system. Trials can take days. weeks, or sometimes months, while guilty
pleas can often be arranged in minutes. Also, the outcome of any given trial is usually unpredictable.
whereas a plea bargain provides both prosecution and defense with some control over the result—
hopefully one that both can live with to some extent. For these reasons and others, and despite its many
critics, plea bargaining is very common. More than 90% of convictions come from negotiated pleas,
which means less than 10% of criminal cases end up In trials. And though some still view plea bargains as
secret, sneaky arrangements that arc antithetical to the peoples will, the federal government and many
states have written rules that explicitly set out how plea bargains may be arranged and accepted by the
court. (See Federal Rule of Criminal Procedure 11(e).)
West Coast 2011
January PF
Plea Bargaining Is Unconstitutional
Plea bargaining undermines the constitution
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth of Written Constitutions,” Harvard J.
of Law and Pub. Pol, v. 15, no. 1,
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
The disappearance of criminal jury trial offers as telling a lesson as one could wish about the myth of
written constitutions. Constitutional texts do not enforce themselves. They require the adherence and
support both of the social and political order and of the legal system and legal professionals. Plea
bargaining has defeated the Constitution and the Bill of Rights because legal professionals -- especially
judges, prosecutors, and defense attorneys -- have preferred the convenience of doing deals to the rigor
of trying cases.
Plea bargaining subverts the constitution for raw expediency
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth of Written Constitutions,” Harvard J.
of Law and Pub. Pol, v. 15, no. 1,
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
The Supreme Court's justification for plea bargaining, though wholly unprincipled, possesses the virtue
of candor. In Santobello v. New York17, Chief Justice Burger explained that plea bargaining is to be
encouraged because "[i]f every criminal charge were subjected to a full-scale trial, the States and the
Federal Government would need to multiply by many times the number of judges and court
facilities."18 Translation: We cannot afford the Constitution and the Bill of Rights. Sheer expediency is
rationale enough for disregarding the constitutional texts.
Plea bargaining causes a huge disparity in justice – unfairly treats people for exercising
their constitutional rights
Timothy Lynch, Cato Institute, Fall 2003, “The Case Against Plea Bargaining,” Cato,
http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf
Sophistry to pretend otherwise 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
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Plea Bargaining Is Coercive
Plea bargaining is based on coercive threat – subverts the constitutions
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth,” Harvard J. of Law and Pub. Pol, v. 15,
no. 1, http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
The plea bargaining system operates by threat. The authorities who administer our non-jury and nontrial procedure tell the accused in effect: "So you want your constitutional right to jury trial? By all
means, be our guest. But beware. If you claim this right and are convicted, we will punish you twice,
once for the offense, and once again for having displayed the temerity to exercise your constitutional
right to jury trial." Our authorities are, of course, more circumspect in their discourse. They do not need
to convey this threat in the bald fashion that I have just expressed it. There is no doubt, however, that
plea bargaining works precisely in this way. Whether plea bargaining takes the form of charge
bargaining (a lesser offense in exchange for a guilty plea) or sentence bargaining (a reduced sanction in
exchange for a guilty plea), the object is to coerce the accused to surrender his right to jury trial by
threatening him with a materially greater sanction if he exercises that right. In observing that the
Framers spoke of jury trial in "all" cases of serious crime -- that jury trial was their norm -- I do not mean
to say that they mandated jury trial. Jury trial was indeed waivable. Then as now, the defendant had the
option to plead guilty. What he lacked was the inducement. Because prosecutorial authorities were not
yet in the business of pressuring people to decline trial, the Framers did not forbid practices that they
had no reason to foresee.
Plea bargaining is inherently coercive
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
What is wrong with the plea bargain system in our courts today? Plea bargaining is a system that is best
described as one of condemnation without adjudication. It is a system that replaces trial, which is what
our constitution intended, with deals. Second, those deals are coerced. The prosecutor is basically
forcing people to waive their rights to jury trial by threatening them with ever greater sanctions if they
refuse to plead and instead demand the right to jury trial.
Even if plea bargaining reduces caseload, it still causes coercion
Timothy Lynch, Cato Institute, Fall 2003, “The Case Against Plea Bargaining,” Cato,
http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf
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.
West Coast 2011
January PF
Plea Bargaining Is Not Free Market Choice
The fact that criminal negotiations are market-like is a reason they’re BAD, not good
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth of Written Constitutions,” Harvard J.
of Law and Pub. Pol, v. 15, no. 1,
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
The most prominent academic effort to justify plea bargaining is Frank Easterbrook's chilling paper,
"Criminal Procedure as a Market System."19 Easterbrook correctly observes that the behavior of actors
in the plea bargaining system is market-like. Under the constraints of the system, they behave rationally,
maximize their utiles, allocate their resources, and so forth.20 It is indeed quite a glorious Turkish rug
market that we have created in lieu of what the Framers designed. Easterbrook's paper assumes away
the vital question, which is what purpose the Framers ascribed to jury trial. Did they mean for this
entitlement to be sold at the Turkish market with the other rugs? I think not. They had public purposes
in mind when envisioning that "all" serious criminal cases would go to jury trial. To say that we have
constructed a market in criminal procedural rights is a condemnation, not a justification.
Even if defendants have a right to enter a contract, plea bargaining is coerced
Timothy Lynch, Cato Institute, Fall 2003, “The Case Against Plea Bargaining,” Cato,
http://www.cato.org/pubs/regulation/regv26n3/v26n3-7.pdf
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. 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.
Plea bargaining is not a free choice
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
The problem with choice arguments is that they neglect the main dynamic of plea bargaining which is
the pressure that the prosecutor puts on you to do it his way. Plea bargain works by threat. What the
prosecutor says to a criminal defendant in plea bargaining is, "Surrender your right to jury trial, or if you
go to trial and are convicted of an offense, we will see to it that you are punished twice. Once for the
offense, and once for having had the temerity to exercise your right to jury trial." That is a coercive
system.
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Plea Bargaining Gives The State Too Much Power
Plea bargaining boosts state power and subverts open trials
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth of Written Constitutions,” Harvard J.
of Law and Pub. Pol, v. 15, no. 1,
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
What is so bad about plea bargaining? A good way to approach that question is to ask why the Framers
so valued jury trial. Plea bargaining suppresses both the jury and the trial. There are important virtues to
each. The jury disperses power away from the officers of the state. Because the sanctions applied in the
criminal justice system are so ominous, the danger of abuse of state power in criminal procedure is
serious. Plea bargaining achieves just what the Framers expected the jury to prevent, the
aggrandizement of state power. Plea bargaining transfers the power of condemnation to a low-visibility
decision maker, the prosecutor. Because negotiation replaces trial, plea bargaining substitutes an
essentially concealed procedure for the salutary openness of public jury trial. The prosecutor who
operates the negotiated plea system exercises awesome powers, powers that were meant to be shared
with judges and jurors. As a practical matter, plea bargaining concentrates both the power to adjudicate
and the power to sentence in the hands of the prosecutor.
Plea bargaining causes state tyranny
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
The main winner in the plea bargaining process is the prosecutor. I describe plea bargaining as a system
of prosecutorial tyranny. What has happened is that a single officer, the prosecutor, now is in charge of
investigating, charging -- that is, bringing formal charges -- deciding whether to prosecute, evaluating
that evidence, [deciding] whether or not in his or her judgment you're guilty or not, and then basically
sentencing you. So that in place of a system which our constitutions have all devised, which is one in
which the power, the awful power, to inflict criminal sanctions on an accused, is dispersed across
prosecutor, witnesses, a judge, jury, sentencing professionals -- instead of all that, what we have now is
a system in which one officer, and indeed a somewhat dangerous officer, the prosecutor, has complete
power over the fate of the criminal accused.
Plea bargaining is dishonest – forces reliance on criminal arrest records instead of
convictions
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth of Written Constitutions,” Harvard J.
of Law and Pub. Pol, v. 15, no. 1,
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
In the end, however, the worst aspect of plea bargaining is simply the dishonesty. Charge bargaining has
made our criminal statistics into hash. The person who committed murder is pretended to have
committed manslaughter; the person whose real crime was child molesting is convicted of loitering
around a schoolyard.15 Not only has this willful mislabelling turned our criminal statistics into a pack of
lies, it has also forced us into the widespread practice of preferring arrest records over conviction
records for a host of purposes. Continental observers find our reliance upon bare arrest records in
matters of sentencing and employment to be incredible.16 And looming over the whole of the saga of
plea bargaining is the lie that has to be lived to escape the Constitution and the Bill of Rights -- the lie
that persons accused of serious crime really do not want a jury trial.
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Plea Bargaining Is Racist
Plea bargaining is used in a racist and disproportionate way
Rolanda J. West, freelance writer, 9-22-2004, “What a bargain,” Colorlines Magazine,
http://www.thefreelibrary.com/What+a+bargain:+the+widespread+practice+of+plea+bargaining+has...a0121420982
In the United States, more than 90 percent of all cases in the justice system are settled by plea
bargaining rather than exercising the right to trial. The rate of felony convictions of nonviolent crimes in
communities of color is over-whelming: African Americans constitute 13 percent of all drug users, yet
they represent 35 percent of arrests, 55 percent of convictions and 74 percent of prison sentences,
according to a 2000 study by the Sentencing Project. These two factors mean that the widespread
practice of plea bargaining--where prosecutors overcharge for a crime and defense attorneys usually
urge defendants to cop a plea for a lighter sentence--has increased repercussions for people of color
who end up literally signing away their lives on the dotted line. Defendants are seldom informed about
the underlying effects of pleading to a felony--such as losing their right to vote, access to federal student
aid, and if they are noncitizens, being deported.
Plea bargaining is racist
Rolanda J. West, freelance writer, 9-22-2004, “What a bargain,” Colorlines Magazine,
http://www.thefreelibrary.com/What+a+bargain:+the+widespread+practice+of+plea+bargaining+has...a0121420982
The racial disproportion in sentencing prompted the Constitutional Rights Foundation to call for a ban
on plea-bargaining, in a recent report commemorating the 50th anniversary of Brown v. Board. The
report cited a U.S. Sentencing Commission study in 1990 finding that 25 percent of whites get their
sentences reduced through bargaining, compared to 18 percent of blacks and 12 percent of Latinos. In
1991 the San Jose Mercury News conducted a massive study of 700,000 California legal cases over a 10year period. The paper reported that "a third of the white adults who were arrested, but had no prior
record, were able to get felony charges against them reduced. Only a quarter of the African-Americans
and Latinos with no priors were as successful in plea bargaining."
Plea bargaining causes racial sentencing disparities
Douglas Savitsky, 8-7-2009, “Plea Bargaining as a Cause of Racial Disparity,” Paper at Am. Sociological
Assoc. Annual Meeting, p. allacademic
Over the last three decades, the rate of incarceration in the United States has risen at an unprecedented
rate. The United States now houses 1 in 100 American adults, or about 2.3 million people, in prisons,
even while the rate of criminal activity has dropped steadily. Further, while criminal activity has
remained equal across races, the rate of incarceration for Blacks and Hispanics has risen faster than the
rate for whites. Indeed, one in three Black males will be incarcerated at some point as opposed to only
one in seventeen whites if current incarceration rates continue. The hypothesis of this project is that
plea bargaining is responsible for both high prison populations and the high levels of racial stratification
in prisons. Plea bargaining allows a prosecutor to purchase convictions of poor and minority defendants
below market rate. This low cost to secure convictions boosts the number of criminal dispositions a
prosecutor can obtain. Additionally, because Blacks are generally more distrustful of the criminal justice
and court systems, their expected outcome from a trial is lower than for whites. As such, Black
defendants are in a worse bargaining position than their white counterparts leading them to accept
worse plea bargains.
West Coast 2011
January PF
Plea Bargaining Hurts The Poor
Prosecutors can unfairly use plea bargaining to hurt the underprivileged
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
And the prosecutor has many devices which increase the level of coercion: multiplying the counts,
threatening to recommend the most severe end of the sentence range, keeping you locked up in pretrial
detention if you're poor -- most people who are in the criminal justice system are poor -- prosecuting
your wife as well as yourself, and things of this sort. The prosecutor can pile it on if you don't play it his
way. It is therefore a deeply coercive system. Yes, you have a choice, but your choice is constrained by
coercion.
Plea bargaining unfairly hurts the poor
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
Prosecutorial power in the plea bargaining process often turns on pretrial detention. That is to say most
people [in the system] are too poor to afford bail, and these people are particularly likely to yield to the
demand that they confess whatever it is they're being charged with rather than wait for some kind of
trial, because they'll be sitting in jail for months and months and months, and therefore there is a very
evil interaction of prosecutorial power with poverty, with indigence. The simple truth is there are not a
lot of Rockefellers in jail for sticking up 7-Eleven stores or drug busts or whatever. Most of the people
caught up in a criminal justice system, for all sorts of sad reasons, are people who are poor. And when
you combine pretrial detention with the prosecutor's power to threaten much worse sanctions if you
don't confess and bear false witness against yourself -- many people caught in that trap basically have
no choice but to bear false witness against themselves, and confess to things they didn't do. …
Plea bargaining disproportionately hurts the poor
The Independent, 4-22-2003, “Plea bargaining is efficient but it is a long way from justice,”
http://www.independent.co.uk/opinion/leading-articles/plea-bargaining-is-efficient-but-it-is-a-longway-from-justice-595242.html
That must not happen. Plea-bargaining as practised in America has a pernicious and distorting effect on
the administration of justice. It encourages guilty pleas by individuals – especially the poor and those
without access to decent lawyers – who might not have been convicted if all the evidence had been
presented to a court. It complicates otherwise legitimate appeals. At the other end of the scale, pleabargaining allows "white-collar" criminals to "buy" themselves more lenient treatment than they might
have received from a jury. It turns the justice system into a series of "deals".
West Coast 2011
January PF
Plea Bargaining Causes Convictions Of The Innocent
Plea bargaining encourages innocent people to plead guilty
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
What happens is that prosecutors don't have to prove their cases; they're simply allowed to coerce
people into waiving their rights. Judges are spared the difficulty of conducting trials and the danger of
being found to have erred; they can't be appealed from as a practical matter in plea bargaining. Defense
counsel is enabled to have a mass practice in which he represents a lot of different people, pleads them
all and has a high volume business ringing the cash register. And the result is all of these people have
interests which are contrary to those of the trial system and those of a genuine ventilation of guilt or
innocence at trial. The result is we have a system in which our constitution says beyond reasonable
doubt, you're presumed innocent until you're proven guilty. And what actually happens is you're
coerced into confessing yourself guilty, whether you are or not.
Plea Bargaining causes convictions of innocent people
Crime and Federalism, 2-26-2006, “Plea Bargaining,” Crime And Federalism,
http://www.crimeandfederalism.com/plea_bargaining/
How does it convict the innocent? It the prosecutor was willing to reduce rape and kidnapping charges
to misdemeanor assault, what does that say about the prosecutor's case? It sure seems like the
prosecutor was not very confident that he could meet his constitutional obligation to prove his case
beyond a reasonable doubt. Given that I'm privy to the details of the case, it's my opinion the prosecutor
could not have proved his case by a preponderance of the evidence. Although Norm's client was
innocent, he prudently pleaded guilty. Then why would an innocent person plead guilty? That's easy. If
Norm's client had gone to trial and lost, he would have been sent to prison for several years and placed
on a sex offender registry for the rest of his life. If Norm's client had won, what would have have gained?
Nothing. Sure, the client could have claimed he was vindicated, but that isn't worth the paper the jury's
verdict is printing on. Insiders will know that a misdemeanor plea to rape and kidnapping charges is
vindication. Outsiders will always say, even of an acquitted man, "Well, he must have gotten off on
some technicality." When it comes to plea bargaining, an innocent defendant has nothing to gain and
everything to lose. It's a disgusting part of criminal justice system that leads to more wrongful
convictions than any crooked cop or incompetently-run crime laboratory.
Plea bargaining causes incentives for defense attorneys to plea at the expense of the
client
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
In the public defender system the defense counsel is representing a hundred other people; the defense
counsel can not take every case to trial, the caseload pressures force the defense counsel to decide
which of the cases he's going to take to trial and which not. Defense counsel in some circumstances is
not very competent and is delighted simply to take his money and run, so to speak. Some of the
compensation arrangements for defense counsel are quite perverse. They're paid by the case and
therefore, it's in their interest to take as many customers as they can, represent to them that they're
getting them a great deal and in fact not do very much for them. So there's no particular reason to think
that defense counsel is any serious answer to the intrinsically coercive nature of plea bargaining.
West Coast 2011
January PF
Plea Bargaining Hurts Deterrence
Plea bargaining is inherently coercive – undermines public trust in the justice system
John H. Langbein, Law Prof at Yale, Winter 1992, “On the Myth,” Harvard J. of Law and Pub. Pol, v. 15,
no. 1, http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html
Plea bargaining is also wrong because it is coercive. A legal system that comes to depend upon coercing
people to waive their supposed rights is by definition a failed system. The system can no longer function
by adhering to its own stated principles. Plea bargaining puts the accused under ferocious pressure to
bear false witness against himself.13 As the disparity grows between the sentence offered for
confession and the sentence threatened for conviction upon trial, the inducement to confess becomes
ever more intense. I do not think that large numbers of innocent people are confessing themselves
guilty to crimes committed by strangers. At the margin, however, such cases do indeed arise.14 The
want of trial is also costly in another way. There is an important civic interest in having public inquiry
and adjudication take place in cases of serious crime -- a positive externality, the economists would say.
Plea bargaining prevents the citizenry from learning about the circumstances of the crime and
punishment. There is, for example, a lingering distaste among substantial sections of the American
people about the way that James Earl Ray was sent off to prison in Tennessee. Without trial, we do not
feel adequately informed about whether our institutions have responded fully and fairly to events.
Plea bargaining hurts the deterrent effect of law
John H. Langbein, Law Prof at Yale, 1-16-2004, “Interview,”
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/langbein.html
So part of what we lose in the plea bargaining process is not only the rights of the innocent accused, but
we're also losing the very important benefit of publicity associated with a trial tradition. … The single
defining characteristic of the criminal law in the theoretical, philosophical understanding is the
condemnatory force of the criminal sanction. It's not simply that we lock you up. We lock up people who
have tuberculosis. The important difference is we lock you up in circumstances in which we condemn
you. The judge says you have wronged society. Plea bargaining devastates the condemnatory force of
the criminal sanction because those sanctions are now applied without adjudication. That judge has not
examined the question of whether you are guilty or innocent. What has happened is that you have been
threatened enough that you waive your right to have that adjudication.
The existence of plea bargaining causes more crime
Joanne Roberts, Economics Department at Toronto, 3-23-2000, “Plea Bargaining with Budgetary
Constraints and Deterrence,” http://repec.economics.utoronto.ca/files/UT-ECIPA-JOROB-00-01.pdf
In this environment, I illustrate that as long as sanctions cannot be raised to the point where no one
commits a crime (avoiding the limiting case), in the presence of plea bargaining under budgetary
constraints, raising sanctions can lead to an increase in crime levels. I also show that increasing
sanctions can lead to a substitution between o ences. In fact, even a proportional increase in sanctions
can imply substitution. The e ect of this is that, even if increased sanctions reduce the total number of
crimes being committed, it can actually imply a higher incidence of severe crime. Instead of increasing
the legislated sanction, a better strategy for reducing crime may be to increase the expenditure on
prosecutorial services. Increasing this expenditure would reduce the pressure to o er attractive plea
bargains for administrative reasons. 7 Another method of increasing deterrence may be to increase the
probability of apprehension.
West Coast 2011
January PF
Con
West Coast 2011
January PF
Plea Bargaining Is Not Unjust
Plea bargaining isn’t always bad – just misapplied
Rolanda J. West, freelance writer, 9-22-2004, “What a bargain,” Colorlines Magazine,
http://www.thefreelibrary.com/What+a+bargain:+the+widespread+practice+of+plea+bargaining+has...a0121420982
Of course in some cases, plea bargaining means shorter jail terms and reduced charges (assuming it
wasn't overcharged in the first place). And for those who are not in a position to fight charges that are
unfairly leveled against them, the plea bargain may be their only hope for life beyond prison. Not all plea
bargains are harmful, but the lack of concern by prosecutors and defense attorneys, as well as the lack
of information available to those without economic or legal resources, can be a recipe for disaster.
Plea bargaining should be reformed, not abandoned – it’s not inherently unjust
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
Even if plea bargaining is abused, that doesn’t make it unjust
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
West Coast 2011
January PF
Plea Bargaining Is Constitutional
Plea bargaining has been ruled constitutional
Encyclopedia of Everyday Law, 2010, “Plea Bargaining,” http://www.enotes.com/everyday-lawencyclopedia/plea-bargaining
Article III, Section 2[3] of the U. S. Constitution provides that "The trial of all crimes, except in Cases of
IMPEACHMENT, shall be by Jury." However, it has never been judicially determined that engaging in a
plea bargaining process to avoid trial subverts the Constitution. To the contrary, there have been
numerous court decisions, at the highest levels, that discuss and rule on plea bargains. The U. S.
Supreme Court did not address the constitutionality of plea bargaining until well after it had become an
integral part of the criminal justice system.
Court has already ruled plea bargaining constitutional
Encyclopedia of Everyday Law, 2010, “Plea Bargaining,” http://www.enotes.com/everyday-lawencyclopedia/plea-bargaining
Two years later, the Court actually defended plea bargaining in Brady v. United States, 397 U.S. 742
(1970), pointing out that the process actually benefited both sides of the adversary system. The Court
noted that its earlier opinion in Jackson merely required that guilty pleas be intelligent and voluntary.
The following year, in Santobello v. New York, 404 U.S. 260 (1971), the Court further justified the
constitutionality of plea bargaining, referring to it as "an essential component of the administration of
justice." The Court added that '[as long as it is] properly administered, [plea bargaining] is to be
encouraged."
Shouldn’t use arguments about the framer’s of the constitution to dejustify plea
bargaining
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
West Coast 2011
January PF
Plea Bargaining Is Not Coercive
Plea bargaining isn’t coercive – it’s a right that’s freely given away
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
There is a far better reason for the Hayes decision: The defendant was simply not being punished for his
refusal to plea bargain; he was being punished for violating the Habitual Criminal Act. Had he been tried
for that at the outset — which he legitimately could have been — he would have received the very same
punishment: life in prison. Regardless of whether such habitual offender laws are wise, Hayes violated
that law, and had, so to speak, incurred the liability of a lifetime prison term. He thus had no right,
strictly speaking, to any lesser sentence, let alone to escape indictment completely. Instead, the
prosecution had the right to indict him for all the crimes he committed, and Hayes had the right to a jury
trial on all those charges. Once each side possessed those rights and liabilities, they had the right to
exchange them; Hayes could trade his jury right for prosecutorial leniency. The prosecution’s bargaining
tactics may have been severe, and perhaps statutory reform of those tactics is called for. But the
legitimacy of the procedure itself is not refuted by abuses. In short, because Hayes had no right to
leniency, his failure to get leniency is not a deprivation, and he could not claim his rights were violated
when he failed to receive it.
Plea bargains don’t coerce anyone – they were guilty of all relevant charges
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
This is the response to Lynch’s analogy regarding tourists arrested in Washington, D.C. for possessing
firearms. He argues that the government must not permit the tourist to waive his right to a jury trial on
the charge of firearm possession, because that decision is “coerced” by the fact that, if the tourist
refuses to plead, the prosecutor will also bring charges for ammunition possession. But the tourist who
possesses a gun and ammunition has violated both the gun law and the ammunition law; assuming
those laws to be otherwise constitutional, the tourist has therefore incurred the liability of sentence for
both crimes. There is nothing unjust (or, more relevantly, unconstitutional) in the prosecutor offering to
drop one of the charges in exchange for a guilty plea on the other. If the tourist refuses and goes to trial
on both charges, the tourist has incurred no greater punishment than he deserved at the outset.
Even in extreme cases of abuse, plea bargaining is still a guaranteed right to contract
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
West Coast 2011
January PF
Defendants Have The Right To Plea Bargains
Defendants have the right to waive a jury trial
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
Plea bargaining is legitimate – defendants have no right not to be indicted
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
Or consider another analogy Lynch adopts from the 1935 false imprisonment case Griffin v. Clark. In
Clark, the defendant was found liable for false imprisonment when he seized the plaintiff’s purse and
would not return it unless she rode with him in a car. Since the plaintiff’s freedom of movement could
not rightly be conditioned on her giving up her purse, the court found that the defendant could not
escape liability by arguing that he had not physically restrained her. Lynch argues that government
bargains requiring defendants to give up the right to a trial are, in the same way, illusory choices. But
the analogy dissolves on closer inspection: The woman had a natural right to freedom of movement
with her purse at any time. A criminal defendant, by contrast, has no right not to be indicted for his
crimes. As Lynch says, the criminal may not walk away from the state; he is rightfully subject to any
indictment consistent with the facts and law. The government may offer leniency and give up its right to
indict him in exchange for a plea, just as it may offer to forgive other debts or confer other benefits. But
the defendant has no grounds for complaint if the government chooses not to. (On the other hand, if
the state indicts him without a factual or legal basis, his due process rights have been violated regardless
of the legitimacy of plea bargaining.)
Plea bargains are legal contracts – there’s a right to enter into them
LawFirms.Com, 2010, “How Plea Bargaining Works,” http://www.lawfirms.com/resources/criminaldefense/defendants-rights/how-plea-bargaining-works.htm
A plea bargain is legally binding and it is a contract between the prosecutor assigned to the case and the
defendant named in the case. Both parties involved in the contract must abide by the terms of the
agreement. Some common terms of plea bargaining include pleading guilty on a specific date,
cooperating in the investigation of another offense, or testifying against a co-defendant. If any of the
terms of the agreement are broken then the bargain may be revoked if the defendant fails to satisfy
their terms of the agreement.
West Coast 2011
January PF
Plea Bargains Reduce The Cost Of Justice
Plea bargaining reduces the costs of justice to everyone involved
Nigerian Compass, 10-26-2009, “Plea Bargaining,”
http://www.compassnewspaper.com/NG/index.php?option=com_content&view=article&id=31523:plea
-bargaining-and-the-criminal-justice-system&catid=656:kayode-oladele&Itemid=806
According to the Division for public education of American Bar Association, plea bargaining is prevalent
for practical reasons: Defendants can avoid the time and cost of defending themselves at trial, the risk of
harsher punishment, and the publicity a trial could involve. The prosecution saves the time and
expenses of a lengthy trial, both sides are spared the uncertainty of going to trial, the court system is
saved the burden of conducting a trial on every crime charged. As explained in Schmalleger (2001), such
a process is beneficial to all parties. "A plea bargain is in the best interest of a defense team if they feel
they cannot win an acquittal and prosecutors will choose to plea bargain if they feel their evidence is
weak. The accused benefits from the possibility of "reduced or combined charges, lessened defense
costs, and a lower sentence than might have otherwise been anticipated" (p. 312). The victims also
begin to restore their lives to some sort of normalcy. One strong point in favor of plea bargain is that it
assures a conviction while reducing the Judges' dockets and lightening the prosecutors' caseload.
Plea bargaining reduces the cost of justice
Encyclopedia of Everyday Law, 2010, “Plea Bargaining,” http://www.enotes.com/everyday-lawencyclopedia/plea-bargaining
Although plea bargaining is often criticized, more than 90 percent of criminal convictions come from
negotiated pleas. Thus, less than ten percent of criminal cases go to trial. For judges, the key incentive
for accepting a plea bargain is to alleviate the need to schedule and hold a trial on an already
overcrowded DOCKET. Judges are also aware of prison overcrowding and may be receptive to the
"processing out" of offenders who are not likely to do much jail time anyway. For prosecutors, a
lightened caseload is equally attractive. But more importantly, plea bargaining assures a CONVICTION,
even if it is for a lesser charge or crime. No matter how strong the evidence may be, no case is a
foregone conclusion. Prosecutors often wage long and expensive trials but lose, as happened in the
infamous O. J. Simpson murder trial. Moreover, prosecutors may use plea bargaining to further their
case against a co-defendant. They may accept a plea bargain arrangement from one defendant in return
for damaging TESTIMONY against another. This way, they are assured of at least one conviction (albeit
on a lesser charge) plus enhanced chances of winning a conviction against the second defendant.
Plea bargains are pragmatically necessary to keep justice going
Associated Content, 5-11-2006, “Plea Bargaining in the Criminal Justice System,”
http://www.associatedcontent.com/article/31672/plea_bargaining_in_the_criminal_justice.html
Although the question remains, why use plea bargaining if it seems to be such a complex and dishonest
system? The main reason is that it keeps our system going. By using the plea bargaining system we avoid
serious congestion within the courts. While there are of course complications with the practice of plea
bargaining this is true for most things in life. However when we weigh the pros and cons of plea
bargaining, the pros outweigh the cons. There are far too many crimes committed in our country each
day, which add up as the year passes. Without the use of plea bargaining the already over crowded
prisons would be even worse.
West Coast 2011
January PF
Plea Bargains Do Not Cause Disparate Sentencing
There’s no disparity with trial sentencing – plea bargains just get off easy, it’s not
punishment
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
In the 2001 case Berthoff v. United States, Judge William Young decried the disparity of plea bargaining
and criminal sentences: Between two similarly situated defendants...if the one who pleads and
cooperates gets a four-year sentence, then the guideline sentence [imposed under federal sentencing
rules] 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. But both of the criminals in Judge Young’s example committed crimes for which they
might be sent to jail for 20 years; neither has a right to demand a four-year sentence. A four-year
sentence for one does not increase the punishment for the other; it simply fails to decrease the other’s
sentence — something to which neither defendant is entitled to begin with. The disparity of their
sentences does not represent greater punishment being visited on the party that refuses the bargain;
rather, it represents a benefit conferred on the party that did bargain.
The existence of disparate punishments doesn’t prove plea bargaining is unfair
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
Plea bargaining isn’t unfair – gives control over the result
Nolo Legal Encyclopedia, 2010, “Defendants’ Incentives for Accepting Plea Bargains,”
http://www.nolo.com/legal-encyclopedia/article-29732.html
As criminal courts become more crowded, prosecutors and judges feel increased pressure to move cases
quickly through the system. Trials can take days, weeks or sometimes months, while guilty pleas can
often be arranged in minutes. This provides defendants with an opportunity to negotiate a plea bargain.
Incentives for the Defendant to Accept a Plea Bargain For most defendants, the principal benefit of plea
bargaining is receiving a lighter sentence for a less-severe charge than might result from taking the case
to trial and losing. Also, the outcome of any given trial is usually unpredictable -- but a plea bargain
provides both prosecution and defense with some control over the result. There are other benefits as
well:
West Coast 2011
January PF
Plea Bargaining Is Advantageous
Plea bargaining has many benefits to the defendant
Nolo Legal Encyclopedia, 2010, “Defendants’ Incentives for Accepting Plea Bargains,”
http://www.nolo.com/legal-encyclopedia/article-29732.html
Even for people who are never rearrested, getting a charge reduced from a felony to a misdemeanor has
other benefits: Some professional licenses must be forfeited upon conviction of a felony. Future
employers may not want to hire someone previously convicted of a felony. Felony convictions may be
used in certain court proceedings (even civil cases) to discredit people who testify as witnesses. Felons
can't own or possess firearms. In many jurisdictions, felons can't vote. In addition, it is often
advantageous to reduce a felony that constitutes a strike under a "three strikes" law to one that doesn't.
Plea bargaining helps reduce the stigma of worse crimes
Nolo Legal Encyclopedia, 2010, “Defendants’ Incentives for Accepting Plea Bargains,”
http://www.nolo.com/legal-encyclopedia/article-29732.html
Having a less socially stigmatizing offense on one's record. Prosecutors may reduce charges that are
perceived as socially offensive to less-offensive charges in exchange for a guilty plea. For example, a
prosecutor may reduce a molestation or rape case to an assault. This can have a major impact on the
defendant's relationship with friends and family. Perhaps even more critical, sometimes defendants
convicted of stigmatizing offenses may be at a greater risk of being harmed (or killed) in prison than if
they are convicted of an offense that doesn't carry the same stigma. Avoiding hassles. Some people
plead guilty -- especially to routine, minor first offenses -- without hiring a lawyer. If they waited to go to
trial, they would have to find a good lawyer and spend both time and money preparing for trial.
Plea bargaining is good for people to avoid the problems with trials
Nolo Legal Encyclopedia, 2010, “Defendants’ Incentives for Accepting Plea Bargains,”
http://www.nolo.com/legal-encyclopedia/article-29732.html
Avoiding publicity. Famous people, ordinary people who depend on their reputation in the community
to earn a living, and people who don't want to bring further embarrassment to their families all may
chose to plead guilty or no contest to keep their names out of the public eye. While news of the plea
itself may be public, the news is short-lived compared to news of a trial. And rarely is a defendant's
background explored in the course of a plea bargain to the extent it may be done at trial. Keeping others
out of the case. Some defendants plead guilty to take the blame (sometimes called the "rap") for
someone else, or to end the case quickly so that others who may be jointly responsible are not
investigated.
West Coast 2011
January PF
Plea Bargaining Does Not Increase Innocent Convictions
Plea bargaining doesn’t cause increased conviction of the innocent
Timothy Sandefur, Pacific Legal Foundation Lawyer, Fall 2003, “In Defense of Plea Bargaining,” Cato
Regulation, http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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.
Plea bargaining does not unfairly punish the innocent
Josh Bowers, Virginia Law, 5-2-2007, “Punishing the Innocent,” SSRN,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983819
Scholars highlight an "innocence problem" as one of plea bargaining's chief failures. Their concerns,
however, are misguided. In fact, most innocent defendants are far better off in a world with plea
bargaining than without. Plea bargaining is not the cause of wrongful punishment. Rather, inaccurate
guilty pleas are merely symptomatic of errors at the points of arrest, charge, and/or trial. Much of the
worry over an innocence problem proceeds from misperceptions over (i) the characteristics of typical
innocent defendants, (ii) the types of cases they generally face, and (iii) the level of due process they
ordinarily desire. In reality, most innocent defendants are recidivists, because institutional biases select
for the arrest and charge of these repeat players. And most cases are petty. In these low-stakes cases,
recidivist innocent defendants face high pretrial process costs (particularly if they are detained). But
innocent defendants also enjoy low plea prices, because prosecutors ultimately prioritize work
avoidance over sentence maximization. Moreover, defendants possess certain underappreciated
bargaining advantages in these lowstakes cases. In the end, the costs of proceeding to trial often swamp
the costs of pleading to lenient bargains. Put differently, many recidivist innocent defendants are
punished by process and released by plea. Thus, plea bargaining is no source of wrongful punishment;
rather, it is a normative good that may cut punishment short, and (for the innocent at least) less
punishment is a positive. Accordingly, the system must provide the innocent access to plea bargaining.
Current vehicles for rational choice pleas - like no-contest pleas and equivocal pleas - are not up to the
task. Instead, the system should re-conceive of false pleas as legal fictions and require defense lawyers
to advise and assist innocent defendants who wish to enter into plea bargains and mouth dishonest onthe-record words of guilt.
West Coast 2011
January PF
Courts Must Approve Plea Bargains
Judges still have to approve a plea bargain – can’t just be coerced
West’s Encyclopedia of American Law, 2010, “Plea Bargaining,” http://www.answers.com/topic/pleabargain
The process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a
criminal case, subject to court approval. Plea bargaining can conclude a criminal case without a trial.
When it is successful, plea bargaining results in a plea agreement between the prosecutor and
defendant. In this agreement the defendant agrees to plead guilty without a trial, and in return the
prosecutor agrees to dismiss certain charges or make favorable sentence recommendations to the
court. Plea bargaining is expressly authorized in statutes and in court rules. In federal court, for example,
plea bargaining is authorized by subsection (e) of rule 11 of the Federal Rules of Criminal Procedure.
Under rule 11(e), a prosecutor and defendant may enter into an agreement whereby the defendant
pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges, recommend
to the court a particular sentence or agree not to oppose the defendant's request for a particular
sentence, or agree that a specific sentence is the appropriate disposition of the case. A prosecutor can
agree to take any or all of these actions in a plea agreement. Under rule 11(e), plea bargaining must take
place before trial unless the parties show good cause for the delay. Generally a judge will authorize a
plea bargain if the defendant makes a knowing and voluntary waiver of his or her right to a trial, the
defendant understands the charges, the defendant understands the maximum sentence he or she could
receive after pleading guilty, and the defendant makes a voluntary confession, in court, to the alleged
crime. Even if a defendant agrees to plead guilty, a judge may decline to accept the guilty plea and plea
agreement if the charge or charges have no factual basis.
Plea bargains are subject to approval in open court – judge can always turn them
down
Encyclopedia of Everyday Law, 2010, “Plea Bargaining,” http://www.enotes.com/everyday-lawencyclopedia/plea-bargaining
Plea bargaining generally occurs on the telephone or in the prosecutor's office at the courtroom. Judges
are not involved except in very rare circumstances. Plea bargains that are accepted by the judge are
then placed "on the record" in OPEN COURT. The defendant must be present. One important point is a
prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the
parties. Prosecutors may only "recommend" to the court the acceptance of a plea arrangement. The
court will usually take proofs to ensure that the above three components are satisfied and will then
generally accept the recommendation of the prosecution. Moreover, plea bargaining is not as simple as
it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the
technical knowledge of every "element" of a crime or charge, an understanding of the actual or
potential evidence that exists or could be developed, a technical knowledge of "lesser included
offenses" versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.
Court has to approve them
Michael W. Flynn, lawyer, 7-19-2008, “Plea Bargains,” Legal Lad,
http://legallad.quickanddirtytips.com/plea-bargains.aspx
How does "making deals for lesser sentences" work?
The short answer is that plea bargains are like settlement agreements between the accused and the
prosecutor, subject to approval by the court. The timing of plea bargains depends on the state.