Whitman College
3/7/16
1
Cards
*****Plea Bargain*****
*****Plea Bargain***** ...........................................................................................................................................1
Affirmative Case........................................................................................................................................................2
Negative Case ............................................................................................................................................................4
*****Definitions***** .............................................................................................................................................5
Plea bargaining: .........................................................................................................................................................5
Testimony ..................................................................................................................................................................5
Unjust ........................................................................................................................................................................5
Exchange ...................................................................................................................................................................6
*****Affirmative***** ............................................................................................................................................7
Precedent ...................................................................................................................................................................7
FINANCIAL ..............................................................................................................................................................8
PROCEDURAL HARMS .........................................................................................................................................9
Prosecutorial Power harmful ................................................................................................................................... 21
Jury .......................................................................................................................................................................... 23
INNOCENT ............................................................................................................................................................. 24
WEALTH ................................................................................................................................................................ 25
Justice ...................................................................................................................................................................... 28
Deterrence ................................................................................................................................................................ 28
Defendants harmed .................................................................................................................................................. 29
Torture ..................................................................................................................................................................... 31
Alaskan ban ............................................................................................................................................................. 32
Deterrence ................................................................................................................................................................ 33
Coercion .................................................................................................................................................................. 34
Defendant ................................................................................................................................................................ 41
System ..................................................................................................................................................................... 44
Contract theory ........................................................................................................................................................ 55
Public perception ..................................................................................................................................................... 55
Prosecutor ................................................................................................................................................................ 57
Fixes to Plea bargain................................................................................................................................................ 59
Financial .................................................................................................................................................................. 62
Prosecutorial discretion ........................................................................................................................................... 63
WNDI 2007
106761230 3/7/16
2
Cards
Affirmative Case
Because we must learn from our past mistakes I affirm the resolution Resolved: In the United States, plea bargaining
in exchange for testimony is unjust.
I offer the following definitions in order to clarify the round:
In the context of the resolution, the words United States supply a qualifier in which we can assume that the debate
centers on a status quo United States. This is the best interpretation for fairness since the only information both
debaters have pre-round is the text of the topic. This means attempts to modify the current legal system are
untopical because we can never evaluate whether the modification would be successful.
Plea Bargaining: the explicit or implicit exchange of reductions in charge for a plea of guilty
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
Testimony is defined as the statement or declaration of a witness under oath or affirmation. In terms of the
resolution however the most general application of plea bargaining comes in terms of defendants testifying against
themselves in order to receive a reduced sentence. With 90% of all cases resolved through plea bargaining, it is
these cases that the resolution questions. This interpretation is the most predictable interpretation but more
importantly, it is impossible for the affirmative to evaluate every type of plea bargain that has ever occurred and
therefore it is essential that instead we evaluate plea bargaining based on the most common form.
My value for the round is justice
The round asks the question of how just it is to use plea bargaining in the US system. It is therefore prescribed that
the overall value be justice. Although the word justice is often a nebulous term, when evaluated with a lense toward
the past, we are able to see which systems worked to further justice and which didnt.
Thus my criterion for the round is reformation of inadequate systems
John H. Langbein explains: The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
A legal system will do almost anything, tolerate almost anything, before it will admit the need for reform in its
system of proof and trial. The law of torture endured for half a millennium although its dangers and defects had been
understood virtually from the outset, and plea bargaining lives on although its evils are quite familiar to us all. What
makes such shoddy subterfuges so tenacious is that they shield their legal systems from having to face up to the fact
of breakdown in the formal law of proof and trial
Therefore the AC operates not only on the regular impact level but a micropolitcal level as well. Often when
systematic problems are ignored, some of the worst atrocities and violations of justice occurs. The AC breaks down
the current conceptions of the legal system and exposes the problems within the structure which inherently furthers
us toward change that as Langbein says is essential.
Slavoj Zizek explains:
Journal of Political Ideologies, Abingdon, For a Leftist Appropriation of the European Legacy
From my own political past, I remember how, after four journalists were arrested and brought to trial by the
Yugoslav Army in Slovenia in 1988, I participated in the `Committee for the protection of the human rights
of the four accused'. Officially, the goal of the Committee was just to guarantee fair treatment for the four accused;
however, the Committee turned into the major oppositional political force, practically the Slovene version of the
Czech Civic Forum or East German Neues Forum, the body which coordinated democratic opposition, a de facto
representative of civil society. The program of the Committee was set up in four items; the first three directly
concerned the accused, while the devil which resides in the detail , of course, was the fourth item, which said that
the Committee wanted to clarify the entire background of the arrest of the four accused and thus contribute to
creating the circumstances in which such arrests would no longer be possible-a coded way to say that we wanted the
abolishment of the existing Socialist regime. Our demand `Justice for the accused four!' started to function as
the metaphoric condensation of the demand for the global overthrow of the Socialist regime. For that reason, in
almost daily negotiations with the Committee, the Communist Party officials were always accusing us of a `hidden
agenda', claiming that the liberation of the accused four was not our true goal, i.e. that we were `exploiting and
manipulating the arrest and trial for other, darker political goals'. In short, the Communists wanted to play the
'rational' depoliticized game: they wanted to deprive the slogan `Justice for the accused four!' of its explosive
general connotation, and to reduce it to its literal meaning which concerned just a minor legal matter; they
cynically claimed that it was us, the Committee, who were behaving `non-democratically' and manipulating the fate
of the accused, coming up with global pressure and blackmailing strategies instead of focusing on the particular
problem of the plight of the accused.
This is politics proper: this moment in which a particular demand is not
simply part of the negotiation of interests, but aims at something more, i.e. starts to function as the
metaphoric condensation of the global restructuring of the entire social space.
WNDI 2007
106761230 3/7/16
3
Cards
Therefore the discussion in the AC offers a purpose beyond that of the debate round which is the first step toward
restructuring the views of society as a whole.
Further, the fact that a system is unwilling to change means that it perpetuates dangers that harm society. Therefore,
the affirmative contends that the current structure of plea bargaining carries much of the same characteristics of
medieval torture and is therefore unjust. Showing how these two practices are inherently linked is enough to affirm
because it shows the injustices within the plea bargain system.
My Sole contention is that the current plea bargain framework contains a structure much like that of ancient
systems which allows for injustice
A) In an attempt to safeguard rights, both torture and plea bargaining systems destroyed safeguard protections.
John H. Langbein explains:
Each of these substitute procedural systems arose in response to the breakdown of the formal system of trial that it
subverted. Both the medieval European law of proof and the modern Anglo-American law of jury trial set out to
safeguard the accused by circumscribing the discretion of the trier in criminal adjudication. The medieval Europeans
were trying to eliminate the discretion of the professional judge by requiring him to adhere to objective criteria of
proof. The Anglo-American trial system has been caught up over the last two centuries in an effort to protect the
accused against the dangers of the jury system, in which laymen ignorant of the law return a one- or two word
verdict that they do not explain or justify. Each system found itself unable to recant directly on the unrealistic level
of safeguard to which it had committed itself, and each then concentrated on inducing the accused to tender a
confession that would waive his right to the safeguards.
When European law attempted to protect the accused through implementing torture, they in turn ended up taking
away the safe guards which protected the accused. Once the US was placed in the same situation, it followed the
path laid before it much like that of the Europeans before. By building the system on an idea of injustice, torture,
the entire concept of plea bargaining in the US becomes unjust because the groundwork followed an immoral
principal.
B) A system with plea bargaining places individuals in the same situation as those victims of torture
Langbein furthers:
In twentieth-century America we have duplicated the central experience of medieval European criminal procedure:
we have moved from an adjudicatory to a concessionary system. We coerce the accused against whom we find
probable cause to confess his guilt. To be sure, our means are much politer; we use no rack, no thumbscrew, no
Spanish boot to mash his legs. But like the Europeans of distant centuries who did employ those machines, we make
it terribly costly for an accused to claim his right to the constitutional safeguard of trial. We threaten him with a
materially increased sanction if he avails himself of his right and is thereafter convicted. This sentencing differential
is what makes plea bargaining coercive. There is, of course, a difference between having your limbs crushed if you
refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of
degree, not kind. Plea bargaining, like torture, is coercive
Using the same tactics as that of torture, although with different punishments, still carries the same ramification for
justice as if we utilized torture in our current justice system. The difference is only in the degree but nothing else,
making plea bargaining on a whole unjust.
C) Both systems contain voluntary confession which still embodies coercion
Langbein finishes:
I have said that European law attempted to devise safeguards for the use of torture that proved illusory; these
measures bear an eerie resemblance to the supposed safeguards of the American law of plea bargaining. Foremost
among the illusory safeguards of both systems is the doctrinal preoccupation with characterizing the induced
waivers as voluntary. The Europeans made the torture victim repeat his confession "voluntarily," but under the
threat of being tortured anew if he recanted. The American counterpart is Rule l l ( d ) of the Federal Rules of
Criminal Procedure, which forbids the court from accepting a guilty plea without first "addressing the defendant
personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises
apart from a plea agreement. Of course, the plea agreement is the source of the coercion and already embodies the
involuntariness.
Open confessions of guilt are harmful for justice because it can potentially force innocent people to admit guilt even
if that is not the case. More importantly, we have seen empirically that the safeguards of torture coercion failed and
since the US system uses the same structure, it is inherent that with time, those safeguards will fail as well.
The only way to protect the future is to look to the past, and since the past tells us plea bargaining is unjust I affirm.
WNDI 2007
106761230 3/7/16
4
Cards
Negative Case
Because plea bargaining is an essential part of America I negate
My Value for the round is justice because the resolution is asking whether or not using the plea bargain is just. This
makes the value of justice proscribed by the resolution.
Thus my criterion for the round is reciprocity
Reciprocity provides for the strongest link back to justice:
1st) If both the defendant and prosecution have something to gain from plea bargaining than it provides for a fairer
trial for both sides.
2nd) It increases the procedural aspect of the courts through supplying another avenue of discussion for both the
prosecution and defense.
3rd) it minimizes harm to both parties since both can use the plea bargaining to their advantage.
If both sides have the potential to further their own case through utilizing plea bargaining then it is an important and
just side of the legal system. The nc operates as a side-constraint to all forms of justice in the AC because as long as
both parties can potentially benefit it cannot be unjust.
My sole contention is that both parties stand to profit from plea bargaining
First, through plea bargaining, increases the effectiveness of the system for prosecutors.
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595
The primary advantage of plea bargaining is that it reduces systemic costs by avoiding expensive trials. Plea
bargaining enables courts to process cases more expeditiously than under the traditional model. This acceleration
mitigates the hardships of pretrial detention, decreases the period in which those defendants who can afford bail may
commit crimes while awaiting trial, and brings the sanction closer to the time that the criminal act itself was
committed. In addition, since a guilty plea operates as a waiver of all nonjurisdictional objections,'"' plea bargaining
enhances the finality of criminal dispositions and thus conserves valuable appellate resources.
By keeping the system functioning quickly and smoothly, prosecutors have to spend less time using resources per
case which increase the effectiveness of the system as a whole. Plea bargaining offers the prosecution an avenue to
utilize the system and in the end keep justice intact.
Second, defendants stand to profit from plea bargaining
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595
Just as prosecutors use plea bargaining to diminish the unpredictability and inaccuracy of trial, so defendants use
plea bargaining to minimize the uncertainty and rigor of sentencing." By pleading guilty in return for a plea
concession, the defendant can eliminate the risk of a heavier sentence following conviction at trial." This practice
has the process value of allowing the defendant to exert some control over the sentencing process. It has the
substantive value of ameliorating sentencing disparities by reducing the possible range of punishment.
The strain of a trial on an individual is not only a difficult psychological event but it also involves much uncertainty.
By having the plea bargain, both sides can use a less intense setting to reach a satisfactory agreement for both sides.
As an Underview
If plea bargaining is determined to be unjust, then it is assumed that it would no longer be used in the justice system.
This is inherently true because unjust practices have no place in the legal system. However as Thomas R. McCoy
explains the cost of removing plea bargaining would put a strain on the economic system of the courts
Ninety percent of cases are resolved by guilty plea. Thus, the resources of the criminal justice system would have to
be doubled if the figure were reduced to 80%or tripled if the figure were reduced to 70%
Therefore the first affirmative burden is to show that in determining that plea bargaining was unjust, the system
would still have the adequate funds to conduct fair trials. All affirmative offense becomes a wash insofar as
abolishing plea bargaining would lead to a large increase in necessary resources that were unavailable.
WNDI 2007
106761230 3/7/16
5
Cards
*****Definitions*****
Plea bargaining:
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22
Plea bargaining-the explicit or implicit exchange of reductions in charge for a plea of guilty-must be understood in
the context of the negotiations that permeate the criminal process. There is negotiation over sentence as distinct from
charge, over dropping all charges as distinct from reducing them, over facts as distinct from the purely instrumental
manipulation of charges
Random House Unabridged Dictionary, © Random House, Inc. 2006
an agreement between a prosecutor and a defendant whereby the defendant is allowed to plead guilty to a lesser
charge rather than risk conviction for a graver crime in order to avoid a protracted trial or to win the defendant's
cooperation as a witness.
http://www.expertlaw.com/library/criminal/plea_bargains.html
There are two types of plea bargain
Charge Bargain
A "charge bargain" occurs when the prosecutor allows a defendant to "plead guilty to a lesser charge," or to only
some of the charges that have been filed against him. For example, a defendant charged with burglary may be
offered the opportunity to plead guilty to "attempted burglary." A defendant charged with Drunk Driving and
Driving with License Suspended may be offered the opportunity to plead guilty to just the drunk driving charge.
Sentence Bargain
A "sentence bargain" occurs when a defendant is told in advance what his sentence will be if he pleads guilty. This
can help a prosecutor obtain a conviction if, for example, a defendant is facing serious charges and is afraid of being
hit with the "maximum" sentence. Typically, sentence bargains can only be granted if they are approved by the trial
judge. Many jurisdictions severely limit sentence bargaining.
Sentence bargaining sometimes occurs in high profile cases, where the prosecutor does not want to reduce the
charges against the defendant, usually for fear of how the newspapers will react. A sentence bargain may allow the
prosecutor to obtain a conviction to the most serious charge, while assuring the defendant of an acceptable sentence.
http://www.cato.org/pubs/regulation/regv26n3/v26n3-8.pdf
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. Plea
bargaining is enormously popular with prosecutors; according to researcher Douglas Guidorizzi, something like 90
percent of criminal cases end in a plea bargain.
Testimony
Testimony. (n.d.). Dictionary.com Unabridged (v 1.1). Retrieved July 18, 2007, from Dictionary.com website:
http://dictionary.reference.com/browse/Testimony
Law. the statement or declaration of a witness under oath or affirmation, usually in court.
http://www.legal-explanations.com/definitions/testimony.htm
The evidence or statement of evidence declared by the witness under the oath, to the court of law where trial was
taking place.
http://www.lectlaw.com/def2/t084.htm
TESTIFY - To give evidence according to law; the examination of a witness who declares his knowledge of facts.
TESTIMONY - The statement made by a witness under oath or affirmation
Unjust
Necessary constraints of legal system:
http://law.jrank.org/pages/12465/Rights-Accused-before-Trial.html
WNDI 2007
106761230 3/7/16
6
Cards
Among the phrases from American legal language that have entered the common usage are "burden of proof" and
"presumption of innocence." In legal actions against someone accused of a crime, the burden of proof is on the state
to prove its case, not on the accused to prove his innocence--and certainly not forthe accused to prove his guilt.
Closely tied with this is the presumption ofinnocence: the defendant is always innocent until proven guilty, and
never the other way around. These ideas are usually associated with the system of trials, but they are in fact
associated with the entire cycle of criminal procedure that begins at the point when a law enforcement officer makes
an arrest.
Hand in hand with these principles go a number of others, embodied either inthe Constitution or in its amendments.
Article III guarantees that the accused has a right to appear before a judge to determine whether he is being
heldillegally (writ of habeas corpus); likewise it forbids bills of attainder, laws declaring a person guilty without
trial; and ex post facto laws, or retroactive laws that attempt to punish someone for something that was not a crime
when they did it. Article III also directs that "The trial of all Crimes, except in cases of Impeachment, shall be by
Jury."
The Sixth Amendment contains a key provision to which the government must abide at the beginning of the criminal
justice process, arrest: the right to beinformed of the accusation. Under the authoritarian or totalitarian systems
referred to above, persons can simply be arrested without even knowing the crime they have supposedly committed.
By contrast, the U.S. system requires, under Rule 7 of the Federal Rules of Criminal Procedure, a "plain, concise,
anddefinite written statement of the essential facts constituting the offense charged."
Closely tied to this Sixth Amendment right are several rights embodied in theFifth. The latter provides, among other
things, that persons outside the armed forces must be indicted, or formally accused, by a grand jury. As its
nameimplies, a grand jury is larger than an ordinary, or petit, jury, which is present at the actual trial; a grand jury,
composed of as many as 23 persons drawn from the citizenry, evaluates the government's case against the criminally
accused, and determines whether or not the state has sufficient cause to bring the case to trial.
-Right to Counsel
http://law.jrank.org/pages/12465/Rights-Accused-before-Trial.html
The right to representation by an attorney is guaranteed in the Sixth Amendment, but the Court did not begin to
explore the implications of this guarantee until 1932, with Powell v. Alabama. In this,the celebrated case of the
Scottsboro boys, a group of young black men accused of raping two white women in Alabama, the Court found that
the accused had been denied the right to legal counsel, and its ruling extended the application of this right from the
federal government to the states. As Justice George Sutherland wrote for the majority in Powell, "The right to be
heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.... Without it
[the accused] though he be not guilty...faces the danger of conviction because he does not know how to establish his
innocence."
"unjust." Dictionary.com Unabridged (v 1.1). Random House, Inc. 20 Jul. 2007. <Dictionary.com
http://dictionary.reference.com/browse/unjust>.
not just; lacking in justice or fairness
http://www.lectlaw.com/def2/u063.htm:
UNJUST - That which is done against the perfect rights of another; that which is against the established law; that
which is opposed to a law which is the test of right and wrong.
http://www.answers.com/topic/procedural-justice
The element of justice concerned with the application of laws, rather than with the content of the laws themselves. If
an unjust law is applied, then procedural justice may obtain although the outcome is unjust. Similarly, an irregular
procedure might be procedurally unjust, but give the right result on an occasion.
Exchange
http://www.answers.com/topic/exchange?cat=biz-fin
1. To give in return for something received; trade: exchange dollars for francs; exchanging labor for room
and board.
2. To give and receive reciprocally; interchange: exchange gifts; exchange ideas.
3. To give up for a substitute: exchange a position in the private sector for a post in government.
4. To turn in for replacement: exchange defective merchandise at a store.
WNDI 2007
106761230 3/7/16
7
Cards
*****Affirmative*****
Precedent
'THE FORMAL JUS'TICE ARGUMEN'T
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 580,581
The premise of the argument is the principle of justice:
Justice requires that like cases be treated alike and that different cases be treated differently. which is sometimes
regarded as expressing the very concept of justice.
Plea bargaining is a ubiquitous practice that allows prosecutors to skirt the judicial process
p. 431
George Fisher. Stanford, Calif Plea Bargaining’s Triumph: A History of Plea Bargaining in
America. Stanford, Calif.: Stanford University Press, 2003.
Plea bargaining was first exposed as a ubiquitous practice in the 1920s. Reform-minded legal academics and social
scientists studying the Prohibition–era crisis of urban law enforcement discovered with alarm that overtaxed
prosecutors were skirting the judicial process by cutting deals right and left.2 In Al Capone’s Chicago, the Columbia
professor Raymond Moley reported, a mere 209 out of a total 13,117 felony prosecutions initiated in 1926 resulted
in jury convictions. As an administrative procedure, Moley noted, plea bargaining was well concealed. The scholar
had to know where to look for traces of deal-making in the boilerplate language of docket books and criminal case
files—a methodological challenge for historians ever since. “The very difficulty with which the facts concerning this
practice have been unearthed,” an exhausted Moley wrote, “shows how easy it has been for prosecutors to indulge in
this sort of compromise without exciting public interest” (p. 7). Moley also attempted the first serious historical
analysis of plea bargaining’s rise.
The principle of precedent,
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 581
which I formulate so as to emphasize that I consider it here only as a requirement of justice: Justice requires that
judicial decisions follow prior decisions in similar cases.
Why Principle of precedent is bad
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 581
The principle of precedent, which I formulate so as to emphasize that I consider it here only as a requirement of
justice: Justice requires that judicial decisions follow prior decisions in similar cases. This formulation ignores the
judicial practice of "distinguishing" cases that are relevantly different, which corresponds to the "different cases"
clause of the principle of justice.
Any thing can be just
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 581
Because the principle of justice is not limited in application, the formal justice argument implies that there is always
a sound reason of justice for following precedent, so that any departure requires justification. It implies, most
importantly, that precedents have this moral force regardless of their disutility, their injustice, and the injustice of the
legal system as a whole.
Principle of conservative justice
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 583
Justice requires that one deal with (judge or act within) new situations in the same way one has dealt with past
similar situations, unless there are overriding relevant differences between them.
Situations easier to judge morally if seen more than once
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 584
one may be justified in judging or acting in a certain way, on the basis of justified beliefs about what the relevant
principles require, even when one fails to do what they actually require. When one has dealt with a situation on its
merits as one responsibly perceived them, the principle of justice can be understood pragmatically to imply that it is
incumbent on one to deal with similar situations similarly.
WNDI 2007
106761230 3/7/16
8
Cards
Judge Consistency
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 586
Justice requires that one decide new cases in the same way one has decided similar past cases, unless there are
overriding relevant differences between them.
The fundamental principle of treating cases alike
David Lyons The Journal of Philosophy, Vol. 81, No. 10, Oct., 1984 pg. 587
The injunction that we should "treat like cases alike" is often put forth as a fundamental principle of justice and
rationality. Procedural justice seems to require such treatment (at least in a great many cases) in order that
institutionally encouraged expectations not be thwarted-one possible reasonbehind the moral power of legal
precedents.
FINANCIAL
- Plea bargaining shouldn’t value saving money over due process
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
It is surely beneficial to reduce the costs of running a criminal justice system, but not by utilizing procedures that are
irrational and unfair, if not unconstitutional. The frequent assertion that plea bargaining introduces much needed
dispositional flexibility into a overly rigid trial system is similarly incomplete: flexibility may be a virtue, but it
surely should not be obtained through methods that conflict with substantive goals of the penal law or with
constitutional requirements of due process
-Plea bargaining places financial strain on defendants
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
U.S. National Advisory Commission on Criminal Justice Standards
and Goals (1973:48).
[A] major cost involved in plea negotiation is the burden it inevitably places upon the exercise of the rights involved
in trial-the rights to jury trial, to confront and cross-examine witnesses, to have the judge or jury convinced of guilt
beyond a reasonable doubt, and similar matters. . . . It is inevitable that exercising these rights often will involve
financial costs to defendants, time commitments, and the emotionally unpleasant experience of litigation. But it is
wholly unacceptable to add to this the necessity of forfeiting a discount that could otherwise be obtained.
-Plea bargaining along with economic constraints leads to inappropriate legal advice
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Public defenders or private attorneys assigned to represent indigent defendants are similarly under economic
constraints that may lead them to prefer a guilty plea to a trial, regardless of the facts of the case or the bargaining
power of the prosecutor. Public defenders often labor under the same intense caseload pressures experienced by their
counterparts in the prosecutor's office. As a result they may urge their clients to settle for a less advantageous
bargain than the facts warrant because a trial would constitute an unacceptable drain on scarce resources.
-Plea Bargains force the poor to plead guilty to crimes they haven’t committed
Burt Saxon Yale-New Haven Teacher’s Institute 2007
http://72.14.253.104/search?q=cache:jFZKX7KUlNoJ:www.yale.edu/ynhti/curriculum/units/1980/6/80.06.11.x.html
+plea+bargaining+essential+part+of+justice+system&hl=en&ct=clnk&cd=1&gl=us
Radical critics of plea-bargaining respond with arguments like these: “The whole criminal justice system is stacked
against the poor. The poor can’t afford bail or expensive lawyers. In many cases poor people plead guilty to crimes
they didn’t commit simply to get out of jail sooner. The poor deserve prompt fair trials. Better yet, the poor deserve
an assault on poverty and racism. Only social and economic changes will lower the crime rate and eliminate the
need for plea-bargaining.
WNDI 2007
106761230 3/7/16
9
Cards
PROCEDURAL HARMS
Plea bargaining makes the justice system strive for the best deal instead of Justice
p.430
George Fisher. Stanford, Calif Plea Bargaining’s Triumph: A History of Plea Bargaining in
America. Stanford, Calif.: Stanford University Press, 2003.
In the high stakes trading rooms of our overwhelmed criminal justice system, most defendants make the same choice
“American Taliban” John Walker Lindh did in 2002. They exchange their plea—along with their constitutional right
to a jury trial—for a prosecutor’s promise of a reduced penalty. Plea bargaining is a complex, ritualized, and
controversial set of institutional practices. But despite much resistance here and abroad, plea bargaining continues to
proliferate around the globe. All of which suggests it might be time to chase Lady Justice from the courthouse steps
and install in her place a more suitable icon—maybe Monty Hall, the money-smiled impresario from Let’s Make a
Deal.
Many felony trails use plea bargaining.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
With some geographical variation, roughly 90% of felony convictions today are obtained through pleas of guilty
rather than through trial (Newman 1966; Miller, McDonald, and Cramer 1978).
There are many different kinds of plea bargaining.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
There are four distinct "pure" forms of plea bargaining, each of which is analyzed below: implicit plea bargaining,
judicial plea bargaining, charge reduction plea bargaining, nd sentence recommendation plea bargaining.
The problem of substantive versus formal justice exists in the first place because there is a contradiction between
sentencing and procedural norms.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
Substantive justice implies a preoccupation with sentencing results rather than with the procedure of decision
making. On strictly normative grounds, therefore, I will hypothesize that the microdynamics of any individual
utilitarian plea bargaining "game" are embedded in a higher order struggle to preserve the integrity of internalized
sentencing standards in the face of guilty plea pressure to abandon them. In particular, "sentence discounts" measure
in equilibrium the average deviation of plea bargained sentences from culturally variable sentencing ideals.
The concept of environment requires modification when the dependent variable is informal role structure.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
From the perspective of informal organization, the "environment" includes the formal structure of the organization
itself as well as an array of exogenous constraints. The concept of formal structure is used in this paper in two
distinct ways. On the one hand, formal structure means the official and externally imposed control system of
criminal courts-not only the organization chart of judge, prosecutor, defense attorney, and defendant with their
respectively prescribed duties and rights, but also the legal apparatus of sentencing codes, evidentiary rules, and
constitutional limitations. On the other hand, formal structure means the officially sanctioned temporal sequence of
adjudicatory procedure. Temporal sequence is the behavioral reflection of certain procedural norms. The form of
plea bargaining that emerges in a criminal court, I will argue, is not independent of the formal structure it subverts.
Plea bargaining is a systematic transformation in the temporal formal structure caused by problems induced by the
control formal structure. Variation in control structure and in exogenous constraints shapes the distinctive problems
to be overcome and thereby the informal adaptations that are provoked.
Charge reduction plea bargaining alters the role of the prosecutor but not that of the judge.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
Through the discretionary evaluation of case evidence as a labeled crime, the prosecutor acts as an advisor who
frames both the sentencing alternatives and the legal context within which the judge can act. The judge still makes
an independent sentencing decision after the plea, within a legal framework which has been manipulated by the
prosecutor. In charge reduction plea bargaining, the defendant also is confronted with two sentence lotteries-a trial
lottery based on the original charge with some probability of acquittal, and a guilty plea lottery based on the reduced
charge with certain conviction. Besides sentence discount differences in means, an added benefit is reduced risk in
the limited form of lower statutory maxima.
WNDI 2007
106761230 3/7/16
10
Cards
The core of the approach to informal role structure in this article is a feedback between two levels of normative
interpretation
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
[…] the role terms within which individual defendants are construed, and the sentencing terms within which an
aggregate pool of defendants is construed.
In sentence recommendation plea bargaining, the prosecutor takes over the judge's sentencing functions.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
The judge and the prosecutor are in a principal-agent relation, with the judge's role being the comparatively passive
one of assuring that the prosecutor's decisions are consistent with the judge's own sentencing policies. The
justifications for a judge's acceding to most of the explicit suggestions of the prosecutor are that, in the absence of
trial, the prosecutor is closer to the facts of the case and that the prosecutor's sentencing standards are identical in
any event. If the judge always rubber stamps the recommendations, the defendant has certain knowledge about the
consequences of pleading guilty. In sentence recommendation plea bargaining, both the discretionary evaluation of
case evidence and the discretionary judgment about individual sentencing have been delegated to the prosecutor.
These four plea bargaining structures emerge through transposing temporally, at an informal level, the officially
prescribed sequence of procedural adjudication.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
In effect, charge reduction involves folding the trial but not the sentence hearing back across the boundary of the
plea. Matters of conviction on a charge are explicitly discussed and settled, even though the resulting sentence is left
open. Judicial plea bargaining in effect folds the sentence hearing but not the trial back across the boundary of the
plea. Strength of state's evidence (i.e., probability of trial conviction) is not systematically assessed because the
judge in an American framework does not have direct access to such evidence before the plea, but provisional
sentence is meted out nonetheless under the tentative assumption that the defendant is guilty as charged. Implicit
plea bargaining folds neither stage back across the plea, relying instead on tacit global cues. And sentence
recommendation folds both stages back across the plea, since the prosecutor both evaluates his or her own evidence
and makes sentence commitments for the judge.
The structure of role relationships among plea bargaining participants follows directly from these underlying
perceptual constructions.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
In the boundary relationship between defendants and court officials, what is at stake in the perception of pre-plea
defendants as individually distinct criminals is the ability of the system to reach out with explicit sentence
commitments. Judicial and sentence recommendation plea bargaining are structured as contract relations between
the defendant and the judge, either directly or through agency, respectively. Interdependent actions of direct
consequence to each party (in this case, sentence for the defendant and guilty plea for the judge or prosecutor) are
"presentiated," or spelled out in advance of commitment by either party (Macneil 1974). The procedural norm that
"a defendant should not be punished until after the issue of guilt is resolved" is effectively abandoned.
There are two main incentives for a defendant to plead guilty from these underlying perceptual constructions.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
[They] are the sentence discount and the reduced uncertainty that a guilty plea can produce.
There are systematic tensions between the internalized sentencing standards of trial court participants and the
exogenous standards implicit in statutory codes and regulations.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
Historians have stressed that the emergence of plea bargaining in the 19th century was associated with the rise of
urban political machines (Haller 1970). "Criminal courts comprised a distinct subculture at the turn of the century
and after. . . . The criminal bar was composed of lawyers who had attended less prestigious law schools, who usually
did not join the bar associations, and who typically were members of ethnic minorities" (Alschuler 1979, p. 229).
Particularistic trial judges and prosecutors, who may be generated by a machine culture, are more concerned with
the criminal than with the crime and hence tend to generate more lenient sentences. Levin (1971) has pointed out
that today this relative judicial orientation to the criminal rather than to the crime is itself a cultural variable.
Pittsburgh trial judges, who emerge through a partisan political framework, give lower sentences for the same
crimes than do their harsher, deterrence-oriented counterparts in Minneapolis, whose background is rooted in bar
associations and reform governments.
WNDI 2007
106761230 3/7/16
11
Cards
Within the trial itself, the average length of time necessary to complete a jury trial has increased steadily.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
In the 18th century, English juries processed 12-20 felony trials a day (Beattie 1977; Langbein 1978), and a
Tallahassee felony court as late as 1890 conducted as many as six jury trials daily (Friedman 1979). While
systematic statistics are not available for comparison, this "contrasts dramatically with the 7.2 days that an average
felony jury trial required in Los Angeles in 1968" (Alschuler 1979, p. 240). The causes of this increase in length of
jury trial include the increased participation of adversary lawyers and the development of procedural due process
controls (Langbein 1979). Both explanations for the diminished carrying capacity of criminal courts stress that
increased professionalization has inhibited the ability of the official system to function expeditiously.
The aggregate flow of case strengths that confront participants is affected, in turn, by a number of factors.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
Strength of state's case is ultimately a matter of evidence and admissible facts. Thus, the average strength of a case
that makes it to plea bargaining is a product of earlier organizational filters-the arrest and investigation practices of
police and the dismissal policies of the prosecutor. The fewer the arrests, the more thorough the investigations, and
the more wholesale the dismissals, the stronger on average will be the evidence underlying plea bargaining
dynamics.
Plea bargaining is structured by the interaction of two levels of strategic "game" simultaneously.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
At the individual level, the game is between the defendant (through his attorney) and either the judge or the
prosecutor and is based on the self-interest motivations outlined in the literature above. At the system level,
however, what is at stake is maintaining the integrity of global sentencing policies, with the judge and/or prosecutor
"playing" not the individual defendant but the entire heterogeneous pool of defendants all at once. To the extent to
which a plea bargaining structure forces judges and prosecutors to generate guilty plea sentences that are on average
at variance with their internalized sentencing norms, judges and prosecutors will be tempted to abandon that
structure. Assuming (holding aside statutory code restrictions) that conviction at trial offers an unconstrained
opportunity to apply these internalized standards directly, the sentence discount is a direct measure of this normative
inconsistency.
Plea Bargains must be entered voluntarily.
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 203
The Constitution of the United States grants certain rights to criminal defendants, among which are the Fifth
Amendment right not to be compelled to incriminate oneself and the Sixth Amendment right to a trial by jury. By
pleading guilty to a crime, a defendant incriminates himself and waives his right to a trial by jury. If a defendant has
a right not to be compelled to incriminate himself or waive his right to a trial by jury, and if pleading guilty is
incriminating oneself and waiving one's right to a trial by jury, then straightforward deduction seems sufficient to
show that guilty pleas cannot be compelled, that is, that they must be entered voluntarily.
There is a precedence of involuntary plea bargaining being overthrown
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 203
The Federal Rules of Criminal Procedure state that a court should not accept a guilty plea "without . . . determining
that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea."' A
typical Supreme Court statement appears in Machibroda v. U.S. : "A guilty plea, if induced by promises or threats
which deprive it of the character of a voluntary act, is void.'
Plea bargaining cannot save people from execution
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 204
The Federal Kidnapping Act, 18 USC 5 1201 (a), provided that a person convicted under the act would be executed
"if the verdict of the jury shall so recommend." By implication, execution was not permitted if conviction resulted
from a plea of guilty. A United States District Court held this section of the act unconstitutional because it
discouraged the free exercise of the right to a trial by jury. In U.S. u. Jackson, the Supreme Court af.firmed the
District Court's ruling.
WNDI 2007
106761230 3/7/16
12
Cards
The plea bargaining system faces many problems
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 204
The problem is this: the Court accepts and insists on the voluntariness principle, but realizes that the conditions
under which (at least) some guilty pleas are entered may not be consistent with it. This has led the Court to answer
three questions: ( I ) a meta-conceptual question-what kind of concept is voluntariness? (2) A conceptual questionwhat does voluntariness mean? ( 3) A legal question-under what conditions are guilty pleas voluntary? Put simply,
plea bargaining has forced the Supreme Court to develop and apply a theory of freedom.
Plea Bargaining should use moral judgment as a alternative
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 205
In this paper I propose to unpack the theory of freedom implicit in these decisions. On the one hand, I shall argue
that the Court has developed a conceptual theory that is helpful to our general understanding of freedom. More
specifically, the Court has correctly concluded that the claim that a defendant voluntarily pleads guilty is not a
purely empirical claim about the defendant's state of mind, or a purely empirical claim about the deprivations the
defendant would suffer for refusing to plead guilty. Rather, the claim requires moral judgments about the context of
the defendant's decision and the actions of the state.
Plea bargaining is always voluntary
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 206
It might be objected that in assuming that the voluntariness principle even raises a problem of freedom, I have
overlooked a crucial distinction between freedom and voluntariness. To say "X acts voluntarily" is often to say no
more than that X's action is self-stated. By this account, X acts involuntarily when X's bodily movements or
decisions are (in some sense) beyond X's control-as when someone forcibly moves X's arms for him, when X is
drugged, or when X is (for some reason) incapable of making a rational decision. The voluntariness principle clearly
does not rest on this sense of voluntariness. If it did, there would hardly be a problem at all. Moreover, the Court's
discussions indicate that it understands "X voluntarily pleads guilty" in social (rather than internal) terms, that is, X
has not been coerced into pleading guilty by some other person(s). In other words, X acts freely.
Plea bargain may be entered in order to reduce sentence or avoid uncertainty
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 207
In the absence of any special incentives provided by the state, a defendant might occasionally plead guilty-to avoid
the embarrassment of a public trial, to get things over with as quickly as possible, or because he thinks it right. If
these were the typical motivations, then most guilty pleas would be uncontroversially voluntary. Of course, many
defendants plead guilty to avoid the uncertainty of a trial's results or because they expect a less severe penalty for
doing so or both.
Plea bargain helps the state
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 208
The practice of giving defendants incentives to plead guilty would not properly be described as plea bargaining
unless the defendant has something to offer the state. Defendants may have much to offer. A defendant may offer
crucial testimony against other (potential) defendants. By pleading guilty, the defendant lowers costs: the state need
not support the defendant while he awaits trial in jail; the prosecutor need not prepare or try the case in court; the
state need not track down witnesses or compel them to appear in court; police need not take time off to testify; juries
need not be called or paid; judges need not preside over trials; courts and offices need not be built or staffed.
Plea bargain may not be voluntary
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 208
It can be argued that it simply is not possible to accept the Court's claim that guilty pleas are genuinely voluntary in
the extreme (and, by implication, in the standard) cases of plea bargaining. One version of that argument goes like
this. Consider the case of the (ubiquitous) Gunman who holds up Jones, saying, "Agree to turn over your money or I
will kill you." After considering the alternatives, Jones agrees to turn over his money. Jones' agreement is a
paradigm case of an involuntary (theref ore, invalid) agreement. A defendant's decision to accept a plea bargain is
analogous to Jones' decision, and therefore is involuntary (and invalid). Moreover, if Gunman is not morally or
legally entitled to coerce Jones into making such an agreement (Jones would be entitled to recover), the state is not
morally or legally entitled to coerce defendants into pleading guilty.1°
WNDI 2007
106761230 3/7/16
13
Cards
Plea bargain is effective in getting criminals
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 208
Moreover, and perhaps most important to many prosecutors, a guilty plea virtually guarantees that the state will
obtain a conviction. There are several reasons why many guilty defendants would be acquitted at trial: gaps in the
evidence; unavailability of witnesses; poor preparation; procedural errors; jury biases. If prosecutors dismissed
charges whenever a conviction was not relatively certain, many guilty defendants would never be punished at all.
Psychological pressure may be coercion psychologically
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 209
Voluntariness as Psychological. The problems of choice facing Jones and a defendant may well place them under
similar psychological strain. Both must choose between a certain, but relatively small, loss and a less certain, but
relatively large, loss. As the expected difference between the options increases, the psychological pressure to choose
the lesser deprivation increases. And although the psychological pressure on Jones may be greater than that in the
standard case of plea bargaining, it may be similar to the pressure on defendants such as Alford or Brady.ll Thus, if
Jones' decision is involuntary because of the psychological pressure under which it is made, then the argument that
at least some guilty pleas are involuntary may well go through.
The victim is not coerced unless the will is overborne or mentally incapacitated
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 210
In Parker v. North Carolina, Brennan (dissenting) argued that the majority wrongly assumed that a plea is
involuntary only when the defendant's will was "literally overborne" or if the defendant was incapable of "rationally
weighing the legal alternatives open to him."l4
“Rational” decision is not enough to determine voluntariness
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 210
One problem with voluntariness,,, is that the threat of serious harm does not necessarily render one incapable of
rationally choosing among alternatives. Jones' decision to turn over his money is precisely the decision that a
rational person in his situation would make. Thus this account of voluntariness, may fail to capture the
involuntariness of the paradigm case.
-Plea Bargaining is built on unjust foundations
FRONTLINE wgbh educational foundation June 17, 2004
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/alschuler.html
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. I mean, what's a more basic component of justice than if you're
going to lock somebody up, you ought to hear whatever he has to say in his defense first? Isn't that the most basic
element of procedural justice? If you have something to say, if you have a story to tell, we want to hear it. We don't
want to punish you unless we're convinced that you've done something wrong.
-Plea Bargaining endangers the public, and creates a weak system
Dr. Tom O’Conner (Prof. at North Carolina Wesleyan College) Advanced Topics in Legal Ethics 11/11/2004
Busy courts also tend to increase their rates of plea bargaining. Prosecutors regularly overcharge in order to bargain
down, and prosecutors hold all the cards in this game. In addition to the usual sentence bargain which involves a
lighter punishment, busy courts may increase the number of charge bargains, which means a serious crime the
person is charged with gets renamed as a less serious crime in order to produce a plea bargain and get the case over
with. Both practices jeopardize the safety of the public. In addition, a stressed-out court component has
implications for the rest of the justice system. Basically, a weak court system makes the rest of the criminal justice
system weak, and plea bargaining is perhaps the number one cause of making it weak. Plea bargaining causes police
to make more or less arrests depending upon how busy they perceive the courts to be.
-Plea bargains unfairly distort the judicial system
" The Oxford Companion to the Supreme Court of the United States.” Oxford University Press, 1992, 2005.
Answers.com 07 Jul. 2007. http://www.answers.com/topic/plea-bargain
The result is a system in which bargaining replaces evidence as the paramount determinant of guilt or innocence.
Although plea agreements generally appear on the record, ambiguity clouds the extent to which judges require a
factual basis to support them. Administrative pressure on the prosecutor and the economic orientation of the defense
attorney drive the system. Guilt is presumed rather than innocence. Features of an assembly line characterize the
process rather than those that typify a model of due process.
WNDI 2007
106761230 3/7/16
14
Cards
Court induces “voluntariness” through involuntary means
Alan Wertheimer, Philosophy and Public Affairs, Sat Jul 21 2007, 212
The Court appears to invoke voluntariness,, in a series of selfincrimination decisions. Garrity, a police officer, was
asked to testify in connection with an investigation into traffic-ticket fixing. He was told that his testimony could be
used against him in a criminal proceeding, that he had the right to remain silent, but that if he did not testify, he
would be subject to removal from office. Garrity answered the questions, and his testimony was subsequently used
to convict him in a criminal proceeding. Garrity appealed, claiming that his testimony had been involuntary. In
Garrity v. New Jersey, the Court agreed, holding that "the option to lose [one's] means of livelihood or to pay the
penalty of self-incrimination is the antithesis of a free choice . . . the statements were infected by the coercion
inherent in this scheme of questioning and cannot be sustained as voluntary. . . ."Ig Spevack v. Klein involved the
threat of disbarment for refusal to testify. The Court contended that the sort of penalty which could render one's
action involuntary should not be "restricted to fine or imprisonment." Rather, "penalty" refers to "the imposition of
any sanction which makes the assertion of the Fifth Amendment privilege 'costly.' "*O
- Plea bargaining hurts constitutional rights
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
The first focuses on procedural fairness for individual defendants: any system of plea bargaining is
held to be improper because it places a price-forfeiture of those concessions available after a guilty plea-on the
exercise of important constitutional rights. In particular, plea bargaining allegedly operates to encourage, if not
coerce, even innocent defendants to waive their right to trial by jury.
-Plea bargaining encourages harried prosecution
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Rather than solicitude for individual defendants, the concern is for the societal interest in rational (and appropriately
stringent) criminal sentences. Plea bargaining, particularly in pressured urban jurisdictions, is said to encourage
harried prosecutors and judges to make dispositional concessions to defendants on the sole ground of administrative
expediency. The resulting sentences therefore cannot be justified by any rationale for the penal sanction, whether it
be deterrence, societal protection, rehabilitation, or (even) retribution
-Plea bargaining allows accused to take advantage of the system
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
It is important to emphasize that the prosecutor and the defendant may both be plagued by inadequate resources.
Large urban jurisdictions often provide the prosecution with insufficient staff to take more than a handful of cases to
trial. If the defense can pose a credible trial threat, a defendant very likely to be convicted at trial on a serious charge
may be able to bargain for an inappropriately lenient sentence because the prosecution cannot afford an additional
trial.
-Plea Bargains imposes a trade off of justice for lighter sentencing, threatening public safety
Burt Saxon Yale-New Haven Teacher’s Institute 2007
The conservative critique of plea-bargaining and the insanity defense that is, of light sentences in general enjoys
great popularity today. The critique goes something like this: “Yes, we realize achieving justice involves balancing
the rights of the accussed against the rights of society. But plea-bargaining by its very nature subverts justice by
guaranteeing that the criminal will get a lighter sentence than he deserves. What about the rights of citizens to be
safe? What about retribution? When you add plea-bargaining to the insanity defense and Supreme Court decisions
such as Miranda and Escobedo, how can the result be anything but a skyrocketing crime rate?”
-Plea bargaining allows for irrational sentencing
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
Specifically, commentators have addressed such problems as the sentencing irrationalities of plea bargaining, the
coercive impact of plea concessions upon the defendant,' the need to regulate abuses of prosecutorial discretion, and
the risk that innocent defendants will plead guilty.'
WNDI 2007
106761230 3/7/16
15
Cards
-Even with plea bargaining, courts are overcrowded
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
The first problem with the traditional model of the American criminal process is that it is overproceduralized and,
thus, expensive and time-consuming. Proving guilt beyond a reasonable doubt in a formal adversarial trial before a
jury consumes valuable police, prosecutorial, and judicial resources. The large volume of criminal cases in
metropolitan areas Is increases these burdens. Despite the fact that most defendants either plead guilty or waive their
right to a jury trial,'" court dockets are clogged and trials delayed." This delay increases the burden of pretrial
detention on those defendants unable to afford bail and exposes the public to the risk of additional criminal acts by
those able to secure release pending trial." Finally, the substantial time gap between the criminal act and the
imposition of punishment undermines, to some extent, the deterrent and rehabilitative functions of the sanction."
-Plea bargaining can delay the trial
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
Although plea bargaining processes cases more quickly than the traditional model, it has not eliminated all
unnecessary delays. Because prosecutors and defense attorneys have limited pretrial contact and because the
imminence of trial is often needed to spur negotiations, plea bargains in many cases are not struck until shortly
before the commencement of trial. In addition, delay frequently is used as a tactical weapon. For instance,
prosecutors may postpone bargaining in order to wear down those defendants who are in jail pending trial. Similarly,
those defense attorneys whose clients are out on bail might file motions and seek continuances to backlog dockets
further, harass the prosecution, and thus secure better deals for their clients.
-Plea bargain diminishes 4th amendment
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
Prosecutors also use plea bargaining to convict many defendants who, although guilty in fact, would have been
acquitted at trial. First, plea bargaining diminishes the impact of the fourth amendment exclusionary rule, since
prosecutors frequently reduce charges in exchange for waivers of arguable constitutional objections. The policies
behind the exclusionary rule thus are expressed in the form of sentencing discounts in numerous uncertain cases
rather than in total acquittal in only a few cases. This practice seems to preserve some element of deterrence to
police misconduct while guaranteeing at least some degree of punishment for those who break the law.
-Plea bargain ignores the beyond a reasonable doubt clause
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
In addition, plea bargaining replaces the beyond-a-reasonable doubt standard with a more indeterminate standard
based on the defense's assessment of both the likelihood of conviction and the value of the concessions offered by
the prosecution. The practice of exchanging sentencing concessions for guilty pleas creates an incentive for
defendants to plead guilty whenever there is a significant risk of conviction at trial." The greater the concession that
is offered, the smaller the risk of conviction that a defendant will be willing to accept, and thus the greater the
incentive to plead guilty that the defendant will have
-Plea concession is arbitrary
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
First, plea creates sentencing inequalities between those defendants who plead guilty and those convicted after trial.
In addition, there are inequalities among those who plead guilty. Defendants who promise to testify against others
often receive greater plea concessions than those who either refuse to testify or have no evidence to offer. Moreover,
prosecutors regularly grant substantial concessions to defendants against whom the state's case is weak.
-Not all defendants have adequate representation for plea bargains
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
The tremendous variation in the quality of defense representation further undermines the objective of equitable
sentencing. Some defense attorneys spend enough time and energy preparing a defense to make credible their threats
of going to trial. Prosecutors faced with such adversaries are likely to make substantial plea concessions in order to
avert litigation. Other defense attorneys, however, lack the resources or even the inclination to prepare their cases
for trial. These lawyers may discard their normal adversarial roles and act primarily as mediators between the
prosecutor and the defendant -trying to arrive at a mutually acceptable deal as quickly and as inexpensively as
possible.
WNDI 2007
106761230 3/7/16
16
Cards
-Plea bargaining creates low nontransparent meetings
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
The informality and low visibility of plea bargaining exacerbate this problem of inequitable sentencing. Subjective
factors such as the prosecutor's desire to enhance his status within his department and his instinctive like or dislike
for a particular defendant may enter into the calculation of plea concessions. These irrational considerations often
produce unnecessarily lenient or unnecessarily severe sentences in individual cases. Either result frustrates the goal
of uniform penalties for equally culpable defendants.
-Poor hurt by bad plea bargaining
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
This inequality of defense representation weighs most heavily against poor and unsophisticated defendants. The
indigent defendant is usually represented by a low-cost private attorney eager to collect his paycheck, a public
defender burdened by a heavy caseload, or a randomly appointed private attorney wanting to return to his practice as
soon as possible. These attorneys all have less incentive to prepare for trial than does the affluent defendant's lawyer
who is compensated at a standard, hourly rate. Among the less affluent defendants, inadequate representation most
seriously handicaps those who are unfamiliar with the plea bargaining system. Such unsophisticated defendants are
more likely to defer to their attorneys and thus to accept poor bargains. While the interests of poor and
unsophisticated defendants are less protected under the traditional model as well, the absence of formal scrutiny
inherent in plea bargaining increases the threat of differential treatment. As in the traditional model, these inequities
undermine the legitimacy of the criminal justice system.
-Plea bargaining takes away right to trial
Thomas R. McCoy; Michael J. Mirra Stanford Law Review, Vol. 32, No. 5. (May, 1980), pp. 887-941.
Since many would concede that the right to trial is fundamental in our scheme of constitutional rights, the
conclusion would follow that any penalty imposed on the right to trial would be subjected to "strict scrutiny" or the
"compelling interest test" under substantive due process. In other words, the purposeful deterrence of the exercise of
the right to trial would violate due process unless it were the least restrictive method available for effectuating a
compelling state interest. The state's primary interest in deterring a defendant's demand for trial is to save the
resources that would be necessary to provide trial for those defendants who would plead not guilty in the absence of
a deterrent. In several cases, however, the Supreme Court has indicated that a state's interest in reducing the
expenditure of its funds is not a compelling interest sufficient to meet the standard of strict judicial review imposed
where the state burdens the exercise of a fundamental right. thus, it can be argued persuasively that the practice of
plea bargaining imposes an unconstitutional penalty on the right to trial
-Plea bargaining hurts justice
Thomas R. McCoy; Michael J. Mirra Stanford Law Review, Vol. 32, No. 5. (May, 1980), pp. 887-941.
The measure of this sacrifice must be understood with some precision. First, critics claim that because plea
bargaining produces a substantially higher conviction rate than trial, some miscarriage of justice is occurring.
-Plea bargaining has too large a risk of inaccuracy
Thomas R. McCoy; Michael J. Mirra Stanford Law Review, Vol. 32, No. 5. (May, 1980), pp. 887-941.
Current plea bargaining practices endorsed by the Court, however, involve large disparities that would probably be
found excessive if analyzed in terms of the risk of inaccuracy they create. Habitual criminal statutes, whose violation
is so rarely prosecuted yet so frequently charged, are used by prosecutors primarily to create massive sentencing
disparities. The relatively rare imposition of the death penalty, despite the number of charges initially filed under
capital crimes statutes, suggests that the primary purpose of the death penalty is to enable prosecutors to create a
sentence disparity sufficient to induce guilty pleas even from defendants whose chances of conviction are small
-Plea bargaining allows for large sentence disparities
Thomas R. McCoy; Michael J. Mirra Stanford Law Review, Vol. 32, No. 5. (May, 1980), pp. 887-941.
Beyond simply failing to restrict this major source of inaccuracy, the Court has actually encouraged this perverse
practice by characterizing plea bargaining as a form of commercial transaction. The plea bargain, by the Court's
characterization, must reflect the risks of litigation. A larger sentencing disparity is more appropriate for defendants
with a high chance of acquittal because they are only being made to "pay" more for a more valuable day in court. By
demanding trial, those defendants receive a high likelihood of acquittal in exchange for a risk of a longer sentence
upon conviction
WNDI 2007
106761230 3/7/16
17
Cards
-Plea bargaining hurts society’s interest
Dominick R. Vetri University of Pennsylvania Law Review, Vol. 112, No. 6. (Apr., 1964), pp. 865-908.
Plea bargaining has been castigated as unethical and contrary to Anglo-American notions of criminal justice. One
argument is that the practice intrudes on society's interests either by limiting the range of punishment which the
judiciary may utilize in setting sentences, or, in those jurisdictions with determinate sentencing statutes, by opposing
society's decision that criminal conduct be met with particular penalties. The argument can be pressed further by the
contention that the elimination of plea bargaining would safeguard the constitutional rights of criminal defendants.
- Many different intricacies to plea bargaining
Malcolm M. Feeley Law & Society Review > Vol. 13, No. 2, Special Issue on Plea Bargaining (Winter, 1979), pp.
199-209
Because it has come to explain so much, plea bargaining is in danger of explaining too little. Because the concept is
so inclusive and refers to such a variety of practices, important differences, subtle variations, degrees of magnitude,
and functional equivalents are in danger of being obscured. People plead guilty for a variety of reasons.
Furthermore, as Mather's (1974) study reports, even a trial can come to be the functional equivalent of a plea
bargaining session.
- Plea bargaining increases chances of substantial sentence differences
Douglas A. Smith The Journal of Criminal Law and Criminology (1973-), Vol. 77, No. 3. (Autumn, 1986), pp. 949968.
Additional support for sentence differentials between pled and tried cases appears in Uhlman and Walker's study of
dispositions of 29,295 convicted felons. Substantial sentence differentials existed between defendants who pled
guilty and those convicted at trial. For example, pled cases were 53% less likely to result in incarceration than cases
where the defendant was convicted by a jury.
-Judge review of plea bargain allows for abuse
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
Insistence that judges must control complete dismissals (the charging decision) if they are to control partial
dismissals (plea bargaining) ignores the special difficulties entailed in supervision of the former. Control of charging
may on balance be a good idea,63 but it poses complex questions of administration and implementation that are not
presented when judges review the adequacy of punishment (a traditional judicial function) in cases that the
prosecutor chooses to bring.
-Plea bargain not effective in decision making
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
Decisions are monitored and controlled by informal devices that operate much less effectively, or not at all, when
the prosecutor negotiates a low-sentence plea. A prosecutorial decision not to charge is constrained by relationships
with police officers and victims, by politics in the office, by the prosecutor's own incentives to appear "tough," and
by her need to maintain a high rate of conviction. Because a decision not to charge is so much more visible and so
much easier to question than a decision about what sentence to recommend in return for a guilty plea, informal
pressures can operate far more effectively in connection with charging decisions than they can when the prosecutor
assesses the strength of a case and decides to offer a lenient plea agreement. Judicial oversight is far less needed in
decisions not to charge than it is in lenient plea bargains.
-Less consequence with plea bargaining for lawyers
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
The shift from plea bargaining to trial renders the attorney's performance highly visible to peers in the courtroom.
This shift also enlarges both the attorney's formal legal obligations of effective assistance and the practical
likelihood that they will be taken seriously.81 The institutional environment of the trial process thus limits the
consequences of the agency problem in ways that are precluded when disposition occurs in a low-visibility plea. The
visibility of trial also tends to generate pressure to alleviate the worst inadequacies of indigent defense funding.
Indigents are far more likely to receive conscientious representation when cases are tried in open court than when
the attorneys are permitted to settle on the basis of an uninformed guess about the likelihood of conviction
WNDI 2007
106761230 3/7/16
18
Cards
- Defense lawyers try to use plea bargain at all costs
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
The single most serious agency problem on the defense side is that the attorney incurs a severe financial penalty if
the case goes to trial. That prospect can powerfully skew his appraisal of the value of a prosecutor's plea offer and
the advice he provides to his client. A prohibition on bargaining protects defendants who would accept a plea offer
that was not in their interest even if the attorney, once forced to trial, would give the same indifferent assistance that
he would provide in plea negotiations.
-Plea bargain reduces scrutiny of attorneys
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
In plea bargaining, the attorney's role is virtually immune from scrutiny or control. The quality of attorney
performance is difficult for both clients and peers to assess; the formal obligations of effective assistance do not,
even in theory, require investigation of factual or legal defenses; and retrospective control by suits for malpractice or
ineffective assistance are precluded by nearly insuperable doctrinal hurdles.
-Due process ignored and is monitoring with plea bargaining
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
In criminal justice, pervasive structural impediments to efficient, welfare enhancing transactions have produced just
this situation. With trials in open court and deserved sentences imposed by a neutral factfinder, we protect the due
process right to an adversarial trial, minimize the risk of unjust conviction of the innocent, and at the same time
further the public interest in effective law enforcement and adequate punishment of the guilty. But plea negotiation
simultaneously undercuts all of these interests. The affected parties are represented by agents who have inadequate
incentives for proper performance; prospects for effective monitoring are limited or nonexistent; and the dynamics
of negotiation can create irresistible pressure for defendants falsely to condemn themselves. As a result, plea
agreements defeat the public interest in effective law enforcement at the same time that they deny defendants the
benefits of a vigorous defense and inflict undeserved punishment on innocents who could win acquittal at trial
-Plea bargain assumes the lawyer is competent to function
Stephen J. Schulhofer Law & Social Inquiry, Vol. 19, No. 1. (Winter, 1994), pp. 135-144.
The major problem in this line of thought is that the preconditions for a just and fair settlement process are routinely
violated in criminal litigation. The parties almost never have access to all relevant information prior to trial, and in
the typical urban court defendants (and often the public as well) are not represented by competent, fully dedicated
counsel.
-With plea bargaining there is a confliction of interest
Stephen J. Schulhofer Law & Social Inquiry, Vol. 19, No. 1. (Winter, 1994), pp. 135-144.
The information problems are compounded by serious flaws in the attorney-client relationship. Because conflicts of
interest skew the incentives of prosecutors and defense counsel, we can have little confidence that defendants and
the public are represented by competent counsel dedicated to their clients. Prosecutors operate under numerous dayto-day pressures to pursue objectives other than that of the public's desire for optimal deterrence. Their goal may be
to enhance their personal batting average, to avoid a potentially embarrassing loss in a particular case, to gain credit
for a dramatic trial victory, to cultivate good relationships with influential private attorneys, or simply to avoid
staying too late at the office.
- Justice hurt because it’s cheaper for defense attorneys to plea bargain
Stephen J. Schulhofer Law & Social Inquiry, Vol. 19, No. 1. (Winter, 1994), pp. 135-144.
For defense counsel, the problems are, if anything, more serious. Because of the financial structure of the attorneyclient relationship, there are sharp divergences between the interests of the defendant and his lawyer. Most retained
attorneys work for a flat fee payable in advance, and court rules invariably prevent the attorney from withdrawing
once an appearance has been entered. Thus, when a retained attorney takes a case to trial, his additional effort
typically must be provided to the client free of charge. For appointed attorneys and public defenders, the dynamics
are sometimes different but the overall effect is the same. Conscription of unwilling attorneys, low flat-fee
compensation, low hourly rates, low fee caps, and heavy caseloads within public defender offices all place attorneys
for the indigent under powerful pressure to resolve cases quickly without going to trial, whether or not such a
disposition is in the best interests of their clients
WNDI 2007
106761230 3/7/16
19
Cards
- Safeguards are illusionary
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
I have said that European law attempted to devise safeguards for the use of torture that proved illusory; these
measures bear an eerie resemblance to the supposed safeguards of the American law of plea bargaining. Foremost
among the illusory safeguards of both systems is the doctrinal preoccupation with characterizing the induced
waivers as voluntary. The Europeans made the torture victim repeat his confession "voluntarily," but under the
threat of being tortured anew if he recanted. The American counterpart is Rule l l ( d ) of the Federal Rules of
Criminal Procedure, which forbids the court from accepting a guilty plea without first "addressing the defendant
personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises
apart from a plea agreement. Of course, the plea agreement is the source of the coercion and already embodies the
involuntariness.
-Safeguards are often incoherent
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The medieval Europeans insisted on two eyewitnesses and wound up with a law of torture that allowed
condemnation with no witnesses at all. American plea bargaining, in like fashion, sacrifices just those values that the
unworkable system of adversary jury trial is meant to serve: lay participation in criminal adjudication, the
presumption of innocence, the prosecutorial burden of proof beyond reasonable doubt, the right to confront and
cross-examine accusers, the privilege against self-incrimination. Especially in its handling of the privilege against
self-incrimination does American criminal procedure reach the outer bounds of incoherence.
- fundamental values are sacrificed through plea bargaining
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
Furthermore, the sacrifice of our fundamental values through plea bargaining is needless. In its sad plea bargaining
opinions of the 1970s, the Supreme Court has effectively admitted that for reasons of expediency American criminal
justice cannot honor its promise of routine adversary criminal trial," but the Court has simply assumed that the
present nontrial plea bargaining procedure is the inevitable alternative. There is, however, a middle path between the
impossible system of routine adversary jury trial and the disgraceful nontrial system of plea bargaining. That path is
a streamlined nonadversarial trial procedure.
-Plea bargaining allows for inconsistent pleaders
Mike McConville Journal of Law and Society, Vol. 25, No. 4. (Dec., 1998), pp. 562-587
One of the central problems raised in plea bargaining is that of the defendant who makes a claim of innocence but
eventually enters a plea of guilty. The problem of inconsistent pleaders is not, of course, unique to plea bargaining.
Innocent defendants may choose to plead guilty for a whole variety of reasons, such as to protect a third party, to get
the matter over with, or out of inner feelings of guilt unconnected with the alleged crime. But it is plea bargaining in
general and the sentence discount in particular which is the greatest cause of inconsistent pleading.
-Plea bargain commitments can be broken by prosecutors
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
The most typical promise by the prosecutor is that of leniency, manifested in the form of either a sentence
recommendation, or, in the case where the prosecutor could clearly' influence the judge in imposing a higher
sentence, no recommendation. In these situations, the prosecutor who fails to make the recommendation or breaks
his promise to not do so, has not fulfilled his side of the bargain. So, too, if the defendant bargains for a specific
recommendation and receives only a general one If the prosecutor promises to recommend a specific sentence and
then employs a recidivist or habitual criminal statute at sentencing which has a minimum sentence higher than the
one bargained for, the prosecutor will have broken his promise.
-Representatives of plea bargain often manipulate system
Mike McConville Journal of Law and Society, Vol. 25, No. 4. (Dec., 1998), pp. 562-587
great mischief would ensue if a legal representative was generally regarded as entitled to plead on an accused's
behalf. It would open the door to dispute as to whether, for example, counsel had correctly understood and acted
upon the instructions which the accused had given him, and, if a dispute of that kind arose, the consequential
embarrassment and difficulty could be difficult in the extreme.
WNDI 2007
106761230 3/7/16
20
Cards
-Plea bargaining is unethical and allows for inconsistent plea bargaining
Mike McConville Journal of Law and Society, Vol. 25, No. 4. (Dec., 1998), pp. 562-587
The ethical problems in plea bargaining are not confined to inconsistent pleading nor are they all addressed by the
codes of practice. A more pervasive issue is the way in which the sentence discount has contributed to a guilty plea
culture among lawyers and the consequences this has for defendants in general. Whilst there are no doubt many
other factors which lead to a trialaverse mentality among lawyers, the availability of the sentence discount
pressurizes defense lawyers further into going down the guilty-plea route.
-Plea bargaining allows for mishaps
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
When the defendant does not receive the benefit of his bargain, he has fallen victim to a plea bargaining mishap.
Mishaps may result from the promises of the prosecution, from the promises of police or investigators, from the
defendant's false belief in the existence of a bargain or from judicial participation in the plea bargaining process.
Either the mishap arising from one of these instances can be the grounds for post-conviction relief will be the
paramount question in the discussion to follow
-Policemen can sway plea bargaining
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
Often, a defendant will plead guilty in reliance upon the representations of a policeman or an investigator. These
representations may also form the grounds for a post-conviction remedy, but the petitioner must show either actual
or apparent authority on the part of the investigator to act as an agent of the prosecutor.
-With mistakes in plea bargaining defendant is unlikely to receive relief
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
Even if it can be proved beyond a doubt that the defendant entered his plea on the mistaken belief that a deal existed,
he is unlikely to obtain relief. The defendant may get relief if he shows a mistake in but if he claims a mistake of
fact, this will prove insufficient for collateral attack.
-Defendants assume that a plea bargain will lead to leniency
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
United States v. Taylor:
The fact that the defendant may have had the expectation that his plea would result in leniency is not sufficient in the
absence that the expectation was induced by the government to justify withdrawal [or collateral attack] of the plea of
guilty
- Defendant can plea bargain with no knowledge of system
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
There is another situation in which the defendant has a mistaken belief in the existence of a deal, a belief not
induced by the government. This is the case where the defendant pleads guilty in reliance on misrepresentations
made by his trial attorney. Sometimes this situation forms the basis of an "ineffective assistance of counsel"
argument. When such a claim is made, the misrepresentation must amount to ''such a kind as to shock the conscience
of the court and make the proceedings a farce and a mockery of justice.
-Plea bargain doesn’t guarantee infallibility
The Journal of Criminal Law and Criminology (1973-), Vol. 65, No. 2. (Jun., 1974), pp. 170-180.
A lawyer may be mistaken. . . . His advice may be open to question. . . . Nevertheless, a conviction will not be upset
merely for those reasons. As long as there is no misrepresentation clothing an opinion in the guise of a guarantee. . .
the defendant has received that to which he is entitled. The sixth amendment guarantees that a defendant will have
the benefit of sound, professional judgment. It does not guarantee infallibility.
- Plea bargaining without safeguards is unwise
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
Courts, proceeding on a case-by-case basis, are rather poorly equipped to prescribe the formal procedures required,
and a judicially formulated doctrine of uniform enforcement without proper safeguards would be unwise.
WNDI 2007
106761230 3/7/16
21
Cards
- Plea bargaining incompatible with a fair system
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Nevertheless, the present bargaining process may be neither the only nor the most equitable way to induce a large
volume of guilty pleas." It may be possible to attain the administrative goals of plea bargaining at less cost to the
interests of both the defendant and the public. This Note contends that the present bargaining process is
incompatible with enlightened and fair sentencing policy because it arbitrarily favors some classes of defendants and
fails to generate the information which any criminal system needs to make intelligent dispositions. It is the argument
of this Note that this sentencing failure is attributable to two factors: (1) the absence of a regularized advocacy
procedure which would impose rigor and consistency on the determination of plea-concessions, and (2) the inability
of the judge to oversee the formulation of plea agreements
- Can’t revise plea bargain sentence well
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
In its present form, plea bargaining is irreconcilable with this model for orderly and enlightened sentencing
decisions.l7 Since it is a disguised sentencing procedure, is the plea bargain often makes the sentencing hearing an
idle formality; by the time it occurs, the prosecutor, the defendant and the judge may lack both the inclination and
the effective power to revise the sentence which the plea bargain has tacitly fixed. Therefore, the sentencing process
is deprived of the portrait of the defendant which the sentencing hearing is supposed to assemble.'" The pre-sentence
report, as well as the detailed presentation of the defendant's crime and character which ideally should emerge from
his trial, contains critical sentencing data which the parties will neglect to consider during the bargaining process but
which later may cast doubt on the wisdom of the plea bargain.
- Plea bargaining factors lead to differential treatment
The Yale Law Journal, Vol. 82, No. 2. (Dec. 1972), pp. 286-312.
The factors which do determine the sentencing outcomes of plea bargaining are totally devoid of genuine
penological significance. Three factors now exert a controlling influence on the concessions a defendant will receive
and hence the sentence he will eventually serve: the evidential strength of the case against him, the number and
seriousness of the charges that his conduct will support, and the wealth and resources at his command." Collectively,
these factors cause wide variation in the penal treatment which equally culpable defendants receive. Ultimately, they
breed an unhealthy cynicism among defendants and thus contribute to their rejection of the penal system's treatment
goals.
-Plea bargain doesn’t allow for reliable adjudication
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Plea concessions reduced to reflect the defendant's chances for acquittal defeat two major goals which any
enlightened criminal system must pursue: reliable adjudication and uniform sentencing. The defendant against
whom the prosecutor's case is weak will either be guilty beyond a reasonable doubt of the acts alleged or he will be
legally innocent." If he is guilty, sentencing uniformity requires an appropriately severe sanction, i.e., one equivalent
to the punishment received by other offenders who have committed similar crimes. On the other hand, if he is
innocent, he should be excluded altogether from the correctional process. By compromising somewhere between the
only two penologically acceptable classifications of the defendant, the bargaining process results in the imposition
of either excessive or insufficient punishment.
Prosecutorial Power harmful
Citizens do not have the information about all the trials.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
Popular wisdom suggests that only by securing convictions can elected prosecutors cultivate the perception that they
are tough on crime. This article considers why voters might use conviction rates to evaluate prosecutors and
whether justice is subverted as a consequence. Citizens lack information about individual cases and prosecutor
behavior. We model voter oversight of prosecutors in light of these difficulties. Voters use the promise of reelection
given observed outputs to induce prosecutors to reduce uncertainty through investigation and subsequently to punish
the guilty and free the innocent.
WNDI 2007
106761230 3/7/16
22
Cards
Plea Bargining Gives too much power to prosecutors, which they didn’t used to have
George Fisher. Stanford, Calif Plea Bargaining’s Triumph: A History of Plea Bargaining in
America. Stanford, Calif.: Stanford University Press, 2003.
There was only one other area of the criminal universe where Massachusetts prosecutors in the first half of the
nineteenth century enjoyed such discretion to charge bargain. A murder conviction also carried a definite penalty:
death. By offering defendants a life-saving charge of manslaughter (or a lesser degree of murder, after the state
legislature introduced such distinctions in 1858), prosecutors again had the power to deal. Fisher’s logic is elegant,
his evidence inescapable. Plea bargaining first appeared at those two points
where prosecutorial powers and interests converged. Besides the most serious crimes, liquor cases were the only
offenses that carried mandatory minimum sentences. In nonliquor cases besides murder, Fisher explains, “the
prosecutor could not credibly threaten defendants with certain and steep punishment if they went to trial and lost,
because the court’s potential leniency had no bounds” (p. 24). And so it happened that murder and liquor cases
“accounted for the great majority of the clear plea bargains that took place in Massachusetts courts in the first twothirds of the nineteenth century
Judicial plea bargaining alters the role of the judge but not that of the prosecutor.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
The judge descends from his or her august stance to intervene actively with the defendant by selecting a tentative
sentence before the plea. This judicial action is usually presented thus: "If the defendant is really guilty, and if the
facts are as I currently understand them, then my sentence would most likely be this." The prosecutor and defense
counsel in this structure act primarily as couriers who lay out before the judge in offsettingly biased presentations
the relevant sentencing information, which includes facts about the defendant's background and the circumstances of
the crime. Holding aside the possibility of a judge's reneging on his or her word, the defendant in judicial plea
bargaining is presented not with a guilty plea lottery in sentences but instead with certain knowledge about the
consequences of a guilty plea.
The electors don’t represent the electorate when it comes to plea bargaining.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
Especially important, in my opinion, is the complete lack of supervision of the typical city or county prosecutor. He
is usually an elected official, and the theory is that he is responsible to the electorate.
Prosecutors aren’t made aware or agree with plea bargaining.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
…and nearly all his reasons for decisions are carefully kept secret, so that review by the electorate is nonexistent
except for the occasional case that happens to be publicized. The plain fact is that more than nine-tenths of local
prosecutors' decisions are supervised or reviewed by no one.
It further decreases justice because prosecutors go after knowingly innocent targets.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
While prosecutors may use their substantial discretion in these matters to pursue the public interest, there exist
longstanding concerns they might abuse this authority. A prosecutor can knowingly pursue cases of questionable
merit, investigating individuals who are likely innocent.
Prosecutors discriminate based on the skill of the attorneys representing.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
Even absent eventual indictment, this power constitutes a formidable incursion in the lives of citizens. A prosecutor
can also decline to press charges for myriad reasons, despite a defendant's apparent guilt (Forst 1993). Prosecutors
can also arbitrarily discriminate in their treatment of individuals suspected of similar crimes (Radelet and Pierce
1985; Paternoster 1984).
Even though they are elected, can still be biased.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
Do elections allow voters to hold prosecutors accountable for their actions? Weber expressed concern that popular
elections would jeopardize the neutral and efficient functioning of the bureaucracy (Weber 1921). More recently,
scholars have found that elected regulators perform differently from appointed ones (Besley and Coate 2000).
WNDI 2007
106761230 3/7/16
23
Cards
Prosecutors rarely know the true innocence or guilt of the victim.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
Confounding this monitoring\ problem, both the public and prosecutor rarely know the true guilt or innocence of
defendants. These factors combine to produce an environment of enormous uncertainty with respect to prosecutorial
activity.
Prosecutors are more concerned with reelection.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
At the same time, popular wisdom suggests that prosecutors, when seeking reelection, must cultivate the public
image that, as guardians of public safety, they are "tough on crime."' This imperative manifests itself in the tendency
for incumbent prosecutors to seek and eventually advertise high conviction rates.
The statistics used by prosecutors
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
By itself, however, the conviction rate is an exceptionally poor measure of prosecutor performance. A prosecutor
may pad her record by dropping or settling cases she is unlikely to win in court.She might also be tempted to
knowingly prosecute an innocent defendant if a conviction is likely (Zacharias 1991).
Jury
PRESSURING DEFENDANTS INTO GIVING UP THE TRIAL RIGHTS MAKES BARGAINING A WEAPON
J. A. C. Grant, The American Political Science Review, Vol. 25, (Nov., 1931), pg 991-2
On one point, however, a protest must be recorded. However valuable the right to waive a jury trial may be, to bring
pressure to bear to force a defendant to exercise that privilege is to convert it from a right to a weapon of abuse. It
should not be necessary to bargain with the prosecuting attorney or accept trial by the court in order to secure a
prompt disposition of one's case. It would seem that a people who have elevated the language of the Great Charter,
"to no man will I deny justice, to no man will I delay it," to the position of a constitutional mandate should ponder
well the condition of the docket of many of our criminal courts. No man should be denied equality before the law
because he cannot put up bond. However, other things being equal, the waiver of jury trial by others should increase
the speed of the wheels of justice and decrease the waiting period for those who are thus unfortunate.
- Prosecutors bring charges knowing they will plea
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Observers of the prosecutor's bargaining strategy have noted that the initial charges he files are frequently chosen in
anticipation of the plea bargain. The prosecutor often attempts to sweep within his indictment every offense which
the evidence against the defendant might sustain. If the single criminal act of the defendant straddles several offense
categories, the prosecutor will charge the defendant with the most serious offense applicable, knowing that the
offense for which he can realistically expect conviction is a "lesser included offense" encompassed therein."
Similarly, if the defendant's criminal activity is technically severable into a series of identical crimes, the prosecutor
will charge him with several counts of the same offense. By charging the defendant at the statutory limit of his
liability, the prosecutor is able to generate incentives for the plea bargain. This technique frequently termed
"overcharging permits the prosecutor to bargain away several counts of his indictment or accept a plea to the least
serious offense charged without risking an acquittal.
-Prosecutors take advantage of defendants
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Overcharging compounds sentencing disparity because defendants vary appreciably in their ability to perceive the
practice and adjust their bargaining strategy to compensate for it. A defendant who is ignorant of the prosecution's
case or who receives only perfunctory advice from counsel may agree to plea "concessions" no more lenient than the
disposition he would receive if he were convicted after trial. Since, by definition, the "overcharge" includes counts
on which either the jury would acquit or the judge would impose a concurrent sentence, such a defendant will
exchange his plea for illusory benefits. In contrast, the defendant who has better counsel, more knowledge of the
prosecution's case, or merely greater familiarity with the behavior of the trial court, will refuse to bargain until the
prosecutor's terms become more favorable than the court's foreseeable sentence. Although both defendants may have
committed equivalent crimes, the more knowledgeable defendant will serve a substantially shorter sentence.
WNDI 2007
106761230 3/7/16
24
Cards
- Prosecutors can lie about charges
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Because of both his less intimate relationship to the prosecutor and his greater fund of time and resources, the
private attorney can employ a host of bargaining tactics which are generally unavailable to the public The prosecutor
may resort to comparable tactics. He may attempt to "bluff" the defense lawyer by exaggerating the strength of his
case or feigning intractability when he has reached an impasse in plea negotiation Occasionally, these bargaining
techniques frustrate the interests of both parties by backing them into a trial which they do not want and from which
they cannot hope to gain
- Prosecutor focuses on number of guilty pleas
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312
One reason that the prosecutor adopts this strategy is that he shares the administrative goal of the entire plea
bargaining system: the elimination of the maximum number of trials. But another reason is that he wants to protect
his conviction record. Since no prosecutor wants to go to trial and lose, it is in his interest to deter from trial those
defendants whose acquittal is most probable.
-Plea bargaining cannot be monitored
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
For plea negotiation, in contrast, no market-like solutions are available to protect either the public or the accused.
The political process is not merely imperfect; it is intrinsically incapable of monitoring the optimality of pieces
negotiated by prosecutors in guilty plea contracts. On the defense side, reputation plays some role in encouraging
loyalty by retained counsel to their clients' interests. But reputation effects are blurred by the extreme difficulty of
extracting useful information about the quality of the bargain struck by an attorney in any particular case
-American plea bargain places power with prosecutor
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The dominant version of American plea bargaining makes similar demands: it requires the prosecutor to usurp the
determinative and sentencing functions, hence to make himself judge in his own cause. I cannot emphasize too
strongly how dangerous this concentration of prosecutorial power can be. The modern public prosecutor commands
the vast resources of the state for gathering and generating accusing evidence. We allowed him this power in large
part because the criminal trial interposed the safeguard of adjudication against the danger that he might bring those
resources to bear against an innocent citizen-whether on account of honest error, arbitrariness, or worse. But the plea
bargaining system has largely dissolved that safeguard.
- Plea bargaining leads to focus on arrest record
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The factual unreliability of the negotiated plea has further consequences, quite apart from the increased danger of
condemning an innocent man. The plea bargaining that takes the form of charge bargaining (as opposed to sentence
bargaining), the culprit is convicted not for what he did, but for something less opprobrious. When people who have
murdered are said to be convicted of wounding, or when those caught stealing are nominally convicted of attempt or
possession, cynicism about the processes of criminal justice is inevitably reinforced. This is willfully mislabeling
plays havoc with our crime statistics, which explains in part why Americans uniquely among Western peoplesattach so much importance to arrest records rather than to records of conviction
INNOCENT
-Plea bargaining allows for a significant danger to the innocent
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
U.S. National Advisory Commission:
By imposing a penalty upon the exercise of procedural rights in those cases in which there is a reasonable likelihood
that the rights will be vindicated, the plea negotiation system creates a significant danger to the innocent. Many of
the rights it discourages are rights designed to prevent the conviction of innocent defendants. To the extent these
rights are rendered nonoperative by the plea negotiation system, innocent defendants are endangered.
WNDI 2007
106761230 3/7/16
25
Cards
- Plea bargaining unfairly coerces
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Plea bargaining, particularly when judge or prosecutor manipulates post trial sentences to "punish" those who refuse
to plead guilty, can operate to coerce or unfairly encourage guilty pleas. And bargain justice in a court whose
resources are inadequate to its caseload may very well result in excessively lenient sentences.
-Plea bargaining hurts distinction between innocent and guilty
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
Constitutional and doctrinal objections aside, plea bargaining seriously impairs the public interest in effective
punishment of crime and in accurate separation of the guilty from the innocent. These compensation limits are
almost invariably identical for guilty plea cases and those that go to trial. And most states have little or no flexibility
to waive compensation caps for unusually complex cases or those that elicit exceptional attorney effort. Thus, the
attorney who counsels his/her client against accepting a plea must do so knowing that his/her time spent preparing
and trying the case will be provided entirely free of charge. Occasionally, a foolish (or idealistic) attorney does take
a case to trial under these conditions, earning compensation that may average one or two dollars per More often, the
results are in accord with economic theory. Attorneys either accept appointment with the expectation (and under the
financial imperative) of convincing the client to plead guilty, or they refuse appointment altogether.
-Plea bargain doesn’t benefit defendant or public
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
From the defendant's perspective, plea bargaining lacks not only procedural regularity but also the personalization of
punishment which advocates of individualized sentencing have sought. At no point do the judge and prosecutor
manifest a recognition of the individual defendant's needs or articulate how the form of punishment they have
applied will benefit either the defendant or the public.
-Not much space between the accused and the adjudicative arm of the law
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Finally, the judge's peripheral role in plea bargaining leads many defendants to believe that the prosecutor dominates
the criminal system and that the judge is virtually powerless. Understandably, these defendants may lose faith in the
separation between the accusatorial and the adjudicative arms of the state which our system so earnestly strives to
maintain.
-Perception of innocent at risk with plea bargaining
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
The defendant's choice to plead guilty can be rational from his private perspective, but it imposes costs on society by
undermining public confidence that criminal convictions reflect guilt beyond are reasonable doubt. An "efficient"
system of voluntary contracting for pleas would convict large numbers of defendants who had a high probability of
acquittal at trial; indeed, to the extent that innocent defendants are likely to be more risk averse than guilty ones, the
former are likely to be overrepresented in the pool of "acquittable" defendants who are attracted by prosecutorial
offers to plead guilty. To deal seriously with these problems we must consider complete abolition of plea bargaining.
WEALTH
-Wealth influences plea bargaining
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Disparities in wealth and resources are another cause of unequal access to plea concessions. The defendant's wealth
influences his ability to make bail and the kind and quality of legal defense he can afford. If the defendant cannot
make bail, the prosecutor will enjoy a substantial bargaining advantage over him. Already incarcerated, this
defendant has little opportunity to prepare evidence to be used either at trial or as a bargaining lever against the
prosecutor. Moreover, each additional day he lingers in jail weakens his desire to withhold his plea and makes him
more receptive to the prosecutor's offer. In contrast, the bailed defendant can gradually maneuver the prosecutor into
an advantageous plea agreement without serious discomfort.
WNDI 2007
106761230 3/7/16
26
Cards
-Wealthy defendants can utilize more techniques for plea bargaining
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
A wealthy defendant can also retain his own counsel rather than depend on the public defender. When he bargains
for a guilty plea, private counsel is usually free from the administrative pressure which plagues both the prosecutor
and the public defender. He will therefore have the time and funds to research his client's case. In sharp contrast, the
public defender-who usually cannot employ pre-plea discovery to gather evidence, must frequently accept the
prosecution's claim for his case at face value.
Crimes by blacks may be considered more serious
Jim Sidanius, Journal of Black Studies, march 1998, 7
Finally, we must also be aware of the possibility that, because of these institutionalized and perhaps unintentional
mechanisms, we are, in fact, underestimating the real effect of race on sentence severity. For example, we are being
very generous in assuming that race does not, in part, determine the severity of charges lodged against defendants,
not simply because Blacks tend to commit more serious crimes but also because crimes that Blacks commit might be
considered more serious that similar crimes committed by Whites. Police authorities and prosecutors have discretion
in determining the severity of the charges lodged. Empirical evidence indicates that the more discretion officials
have, the greater the level of discrimination is likely to be. Not only are Blacks likely to receive more severe
sentences, but they are also more likely than Whites to serve longer portions of their time once in prison; this is
especially true when police and prison officials have discretionary power (Petersilia, 1983).
Race effects sentence
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
Societal perceptions of race and reactions to those perceptions are important considerations in the sentencing of
criminal defendants. Peterson and Hagan (1984) argue that previous conceptions of race in the literature have been
overly simplistic and static in nature. They contend that race should be analyzed contextually and that the effects of
race on criminal sentencing should be determined in varying social settings.
Racism in the court
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
Simply put, the findings support the contention that: (1) minority racial status, (2) a prior felony conviction, and (3)
pretrial detention each decidedly increase the odds of incarceration. Nonwhite burglary defendants who plead guilty
are 20 percent more likely to be imprisoned than are their white counterparts. Felony recidivists and defendants
detained during plea negotiations are each 66 percent more prone to incarceration.
Plea Bargains are reacially exclusive
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
While type of judicial jurisdiction does not have a direct effect on sentencing outcomes, it does provide a context in
which the influences of race and prior felony record can be better understood. When comparing southern with
nonsouthern jurisdictions, we find that racial minorities and defendants previously convicted of a felony receive
active prison terms significantly more often in the South. The odds of incarceration in southern compared to
nonsouthern jurisdictions are 18percent greater for nonwhites and 22 percent greater for prior felons. The effects of
the defendant's race and record of prior felony convictions on the outcomes of plea negotiations appear then to be
influenced by jurisdictional context.
Racial composition withing jurisdictions
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
The racial composition of the sample of burglary offenders ranges from 78 percent white in Seattle to 72 percent
nonwhite in New Orleans. In the southern jurisdictions the defendants are predominantly nonwhite (62%), while
outside the South the defendants are principally white (71%). Pretrial detention is more common in Norfolk and in
New Orleans than in any of the nonsouthern jurisdictions. The southern jurisdictions report detaining 61 percent of
men accused of burglary compared to 31 percent in nonsouthern jurisdictions.
WNDI 2007
106761230 3/7/16
27
Cards
Plea Bargains exclude minorities
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
The present analysis focuses on the effects of race on negotiated sentencing outcomes across judicial jurisdictions.
The central finding is that minority racial status decidedly increases the odds of incarceration in southern
jurisdictions but not in those outside the South. Support is provided therefore for the Peterson-Hagan (1984) position
that the understanding of the race-sentencing relations may well be advanced by context specific analysis.
Courts lack equality
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
Simply put, the findings support the contention that: (1) minority racial status, (2) a prior felony conviction, and (3)
pretrial detention each decidedly increase the odds of incarceration. Nonwhite burglary defendants who plead guilty
are 20 percent more likely to be imprisoned than are their white counterparts. Felony recidivists and defendants
detained during plea negotiations are each 66 percent more prone to incarceration.
Plea Bargain are exclusive to elitism
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
While type of judicial jurisdiction does not have a direct effect on sentencing outcomes, it does provide a context in
which the influences of race and prior felony record can be better understood. When comparing southern with
nonsouthern jurisdictions, we find that racial minorities and defendants previously convicted of a felony receive
active prison terms significantly more often in the South. The odds of incarceration in southern compared to
nonsouthern jurisdictions are 18percent greater for nonwhites and 22 percent greater for prior felons. The effects of
the defendant's race and record of prior felony convictions on the outcomes of plea negotiations appear then to be
influenced by jurisdictional context.
Race-sentencing is not just
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
The present analysis focuses on the effects of race on negotiated sentencing outcomes across judicial jurisdictions.
The central finding is that minority racial status decidedly increases the odds of incarceration in southern
jurisdictions but not in those outside the South. Support is provided therefore for the Peterson-Hagan (1984) position
that the understanding of the race-sentencing relations may well be advanced by context specific analysis.
Plea negotiations are not limited
John A. Humphrey; Timothy J. Fogarty,, University of North Carolina Press. Social Forces, Vol. 66, No. 1. (Sep.,
1987), pp. 176-182.
Criminal sentences are invariably the consequence of plea negotiations. The process of negotiation is shown to be
affected by the defendant's: (a) criminal history and (b) pretrial release status. A prior criminal record markedly
increases the likelihood of incarceration (Clarke & Koch 1976; Hagan & Bumiller 1983) and tends to result in the
imposition of a longer prison term (Thomson & Zingraff 1981). Similarly, pretrial detention, either because bail was
denied or could not be met, lessens the defendant's negotiating power and increases the acceptability of a specific
prison term
(Clarke & Kurtz 1983; Garber, Klepper & Nagin 1983).
Statistics prove that race affects sentencing.
Jim Sidanius, Journal of Black Studies, march 1998, 2
Uhlman found that the product-moment correlation between race and sentence severity was 0.16 and that, even after
considering the other variables in the model, the direct effect of race on sentence severity (0.07) could account for
approximately 43.5% of the simple correlation between these two variables.' Although all of the coefficients in this
model were statistically significant, path analysis cannot adequately provide information about whether or not the
entire model is correctly specified.
WNDI 2007
106761230 3/7/16
28
Cards
Justice
Justice as Reciprocity Refers to Strategic Capacities
Allan Buchanan, Princeton University Press, Philosophy and Public Affairs, p. 228
Justice as reciprocity is the view that not only relations of distributive justice but moral relations generally, at least
so far as they are rationally justifiable, obtain only among those who are (or at least can be) net contributors to the
cooperative surplus, that portion of human wealth that results from cooperation. Both the capacity to contribute and
the capacity to harm may be thought of as strategic capacities insofar as an individual can use them to influence the
behavior of other rational, purely self-interested agents. Justice as reciprocity makes the ascription of rights depend
only upon the possession of either or both of these strategic capacities. p. 228
Subject Centered Justice is about the Features of the Individual
Allan Buchanan, Princeton University Press, Philosophy and Public Affairs, p. 231
Justice as reciprocity is to be contrasted with what I shall call subject centered conceptions of justice. According to
subject-centered conceptions, basic rights to resources are grounded not in the individual's strategic capacities but
rather in other features of the individual herself her needs or nonstrategic capacities. The term 'subject-centered'
seems apt since it serves to emphasize that moral status depends upon features of the individual herself other than
her power to affect others for good or for ill. p. 231
Plea Bargins were often considered to undermind justice
George Fisher. Stanford, Calif Plea Bargaining’s Triumph: A History of Plea Bargaining in
America. Stanford, Calif.: Stanford University Press, 2003.
But if prosecutors have always had strong incentives to cut deals with defendants, they have not always had the
power to do so. After all, judges have always had a virtual monopoly on sentencing power, and they have not always
had the interest or inclination to play ball with prosecutors. Until the late nineteenth century, Massachusetts judges
tended to oppose plea bargaining. They viewed deal-making as a compromise at justice’s expense and bristled at any
attempt by prosecutors to usurp the sentencing power that by long tradition and legislative enactment was supposed
to be theirs alone.
Deterrence
Increased penalties has no impact on deterring crime
Joanne Roberts University of Toronto Plea Bargaining with Budgetary Constraints and Deterrence March 23, 2000
pg. 1
Increasing penalties has long been believed to be a crucial strategy for decreasing the incentives to commit crime,
and thereby, reducing the level of crime. In Becker's (1968) model of crime, he identified two variables that could be
adjusted to increase deterrence by affecting the certainty and the severity of punishment: the probability of
apprehension and the length of sentences. Empirical evidence appears to indicate that the level of crime is more
responsive to changes in the probability of apprehension than to changes in severity. Although empirical issues
make these results difficult to judge, the findings do suggest an asymmetry in the effects of increased certainty of
apprehension and increased severity of punishments on the crime level. Anecdotally, this asymmetry has also been
observed in some jurisdictions. For example, in New York City increasing the probability of apprehension by
increasing the police presence appears to have drastically reduced crime4 where threats of increased punishments
had appeared unsuccessful. A similar asymmetry can be generated by an institutional feature: Prosecutors with
restricted resources may make plea bargains with defendants.
Criminals
-Plea bargain can allow criminals to get away with crimes
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
The second major externality is the risk of inadequate deterrence if prosecutors offer guilty defendants sentences
that are too low. Scott and Stuntz acknowledge that judicial oversight could be viewed as a means to correct agency
problems in the prosecutorial function. But they dismiss this possibility because the prosecutor's initial charging
decision is not subject to this sort of judicial oversight. Since the prosecutor can choose not to charge at all, they
argue, it is odd to constrain him when he seeks only a small penalty.
WNDI 2007
106761230 3/7/16
29
Cards
-Plea bargaining hurts meaning of criminal convictions
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
The decision of an innocent defendant to plead guilty in return for a low sentence inflicts costs on society, even if
the defendant prefers this result, because it undermines the accuracy of the guilt-determining process and public
confidence in the meaning of criminal conviction. To make this point is not to say that forcing the innocent
defendant to trial is doing him a favor; Scott and Stuntz are correct to point out that denying the settlement option
only sharpens the innocent defendant's predicament. But providing a settlement option does not avoid the dilemma;
it merely shifts its costs from the risk-averse individual to society at large. Nothing in economic analysis enables us
to conclude that this social harm is outweighed by the advantages to the individual defendant, even under the
(problematic) assumption that the individual's preference for a guilty plea is the result of disinterested professional
advice based on a thorough investigation of factual and legal defenses.
-Plea Bargains increase the incentive to commit crimes
Steeve Mongrain and Joanne Roberts SFU Economics, Simon Fraser University: Dept of Economics, “Plea
Bargaining with Budgetary Constraints” May 2007
In this paper, we demonstrate that plea bargaining may introduce some perverse outcomes. In particular, counterintuitively in an environment with plea bargaining, increasing sanctions can lead to more crime when the prosecutor
is resource constrained. In other words, excessive use of plea bargaining can reduce the effectiveness for higher
sanctions.
Increased penalties have long been believed to be a crucial strategy for decreasing the incentives to commit crime,
and thereby, reducing the level of crime. However, empirical evidence casts some doubt on the responsiveness of
criminal activities to changes in sanctions…This paper suggests that, in the presence of resource-constrained
prosecutors who enter into plea bargains to relax these constraints, the presence of these agreements can diminish, or
even completely offset the deterrence effect of increased legislated sanctions.
Defendants harmed
-Plea bargain leads to negative conception of justice by defendants
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
The most serious shortcoming of plea bargaining as a sentencing process is the negative perceptions which it
encourages defendants to form of the legal system. Sentencing inequalities are widely publicized and compared
among inmates, accentuating the outrage of the defendant who feels he has been misled into accepting an
excessively harsh sentence and reinforcing the smugness of the defendant who has bargained for an unduly light
sentence. Both defendants derive the same lesson from sentencing disparities: the bargaining process responds to
adept manipulation, not to neutral and consistent sentencing principle.
-Defendants become demoralized
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Defendants are also demoralized by the furtive and summary methods that the bargaining process employs. Pleas are
often the product of brief and clandestine consultations between the prosecutor and defense counsel which may
occur in the courthouse corridor or the prosecutor's office. The defendant rarely attends these consultations, let alone
participates in them. And the judge frequently pretends that such encounters do not take place, thereby clinging to
the fiction that the sentencing hearing is the sole forum in which the sentencing decision is made.
- Once plea bargain occurs the conception of the defendant changes
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
A rule enforcing plea bargains is more consistent with due process than merely permitting the defendant to withdraw
his plea on the state's failure to perform. A bargained plea becomes involuntary if the promised inducement is not
forthcoming. The usual remedy for an involuntary guilty plea is permission for the defendant to withdraw the plea
and have the judgment vacated or set aside. However, this procedure will often fall short of returning the defendant
unprejudiced to his original position. Some jurisdictions would admit the withdrawn guilty plea in evidence at the
subsequent Furthermore, the state can never compensate a defendant for any sentence served," or notoriety
suffered:" as a result of pleading guilty
WNDI 2007
106761230 3/7/16
30
Cards
-bad legal systems attempt to not change
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
A legal system will do almost anything, tolerate almost anything, before it will admit the need for reform in its
system of proof and trial. The law of torture endured for half a millennium although its dangers and defects had been
understood virtually from the outset,; and plea bargaining lives on although its evils are quite familiar to us all. What
makes such shoddy subterfuges so tenacious is that they shield their legal systems from having to face up to the fact
of breakdown in the formal law of proof and trial
- Plea bargaining can be psychologically harmful
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
The problems of choice Jones and a defendant may well place them under similar psychological strain. Both must
choose between a certain, but relatively small, loss and a less certain, but relatively large, loss. As the expected
difference between the options increases, the psychological pressure to choose the lesser deprivation increases. And
although the psychological pressure on Jones may be greater than that in the standard case of plea bargaining, it may
be similar to the pressure on defendants such as Alford or Brady.ll Thus, if Jones' [the] decision is involuntary
because of the psychological pressure under which it is made, then the argument that at least some guilty pleas are
involuntary may well go through.
- Plea bargaining operates off of fear
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
46 U.S. Law Week 4089 (1978) at 4091:
Acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is
involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the
plea may have been induced by . . . fear of the possibility of a greater penalty upon conviction after trial
- plea bargain is not always voluntary
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
In the absence of any special incentives provided by the state, a defendant might occasionally plead guilty-to avoid
the embarrassment of a public trial, to get things over with as quickly as possible, or because he thinks it right. If
these were the typical motivations, then most guilty pleas would be uncontroversially voluntary. Of course, many
defendants plead guilty to avoid the uncertainty of a trial's results or because they expect a less severe penalty for
doing so or both. Plea bargaining is the dominant mode of conviction in our criminal justice system, and the
"bottom-line" of plea bargaining is the sentence-differential-the difference between the sentence expected from one
course of action and another.
-Plea bargaining is a series of threats
Douglas A. Smith The Journal of Criminal Law and Criminology (1973-), Vol. 77, No. 3. (Autumn, 1986), pp. 949968.
Additional attacks on plea bargaining focus on the alleged coerciveness of the process .This viewpoint characterizes
plea bargaining as a series of threats and promises by legal officials that induce defendants to forfeit many of their
legal rights and plead guilty. The coercion argument rests on the belief that defendants convicted at trial are
sentenced more harshly than those convicted by plea. Since a defendant seeks to minimize his punishment, pleading
guilty is made attractive by an explicit agreement or implication that his sentence will be reduced in exchange for a
guilty plea.5 This promise convinces defendants that pleading guilty serves their own interests. This dual sentencing
structure has been criticized because it penalizes defendants for exercising constitutionally guaranteed legal rights
and subordinates due process concerns to crime control objectives.
-Defendant wants to keep their punishment to a minimum at all costs
Thomas R. McCoy; Michael J. Mirra Stanford Law Review, Vol. 32, No. 5. (May, 1980), pp. 887-941.
Criminal defendants threatened with fines, imprisonment, or death are primarily interested in reducing their
punishment either by avoiding conviction or by incurring the smallest possible fine or the shortest possible prison
term. Related interests include avoiding either a conviction for particularly offensive conduct whose stigma or
public dishonor exacts its own informal penalty' or a conviction that would disqualify the defendant from
occupations or valuable privilege Of course, a defendant will not always make a rational choice based solely on
receiving the lowest possible penalty-an actually innocent defendant with a strong case against him may pursue a
trial despite an attractive plea bargain just to vindicate himself. But most defendants care little about foolhardy
gestures and presumably would choose the course of action, even if it means pleading guilty, that keeps their penalty
to a minimum.
WNDI 2007
106761230 3/7/16
31
Cards
- Plea bargaining allows for broken agreements
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Their concern typically focuses on procedural deficiencies of particular bargaining systems: the possibility of
broken or misunderstood promises, for example, or of prosecutorial caprice in determining which defendants are to
be offered a plea bargain. The seriousness of these concerns has been substantiated by scholars and practitioners
alike
-Plea bargain is easy way out
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Assigned counsel typically are woefully underpaid in comparison to the fees they charge private clients.
Compensation for trials is particularly low and defense attorneys therefore maximize their earnings by disposing of
an assigned case as quickly as possible through a plea bargain
Torture
- European torture system has same procedural safeguards as plea bargain
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The parallels in function and doctrine between the medieval European system of judicial torture and our plea
bargaining system. The starting point, which will be obvious from what I have thus far said, is that each of these
substitute procedural systems arose in response to the breakdown of the formal system of trial that it subverted. Both
the medieval European law of proof and the modern Anglo-American law of jury trial set out to safeguard the
accused by circumscribing the discretion of the trier in criminal adjudication. The medieval Europeans were trying
to eliminate the discretion of the professional judge by requiring him to adhere to objective criteria of proof. The
Anglo-American trial system has been caught up over the last two centuries in an effort to protect the accused
against the dangers of the jury system, in which laymen ignorant of the law return a one- or two word verdict that
they do not explain or justify. Each system found itself unable to recant directly on the unrealistic level of safeguard
to which it had committed itself, and each then concentrated on inducing the accused to tender a confession that
would waive his right to the safeguards.
- Sentence differential much like European torture system
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
In twentieth-century America we have duplicated the central experience of medieval European criminal procedure:
we have moved from an adjudicatory to a concessionary system. We coerce the accused against whom we find
probable cause to confess his guilt. To be sure, our means are much politer; we use no rack, no thumbscrew, no
Spanish boot to mash his legs. But like the Europeans of distant centuries who did employ those machines, we make
it terribly costly for an accused to claim his right to the constitutional safeguard of trial. We threaten him with a
materially increased sanction if he avails himself of his right and is thereafter convicted. This sentencing differential
is what makes plea bargaining coercive. There is, of course, a difference between having your limbs crushed if you
refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of
degree, not kind. Plea bargaining, like torture, is coercive
- Torture system and plea bargaining use similar strategies
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The torture victim was coerced into a confession that condemned him to the most severe of punishments, whereas
the plea bargain rewards the accused with a lesser sanction, typically some form of imprisonment, in exchange for
his confession. Obviously, the greater the severity of the sanction that the accused's confession will bring down upon
himself, the greater the coercion that must be brought to bear upon him to wring out the confession. Plea bargaining
is as coercive as it has to be for the modern system of sanctions.
- Plea confessions are unreliable
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The tortured confession is, of course, markedly less reliable than the negotiated plea, because the degree of coercion
is greater. An accused is more likely to bear false witness against himself in order to escape further hours on the rack
than to avoid risking a longer prison term. But the resulting moral quandary is the same
WNDI 2007
106761230 3/7/16
32
Cards
- Entering a plea of guilty through bargaining is similar to torture pleas
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The American law of plea bargaining has pursued a similar chimera: the requirement of "adequate factual basis for
the plea." Federal Rule l l ( f ) provides that "the court should not enter judgment upon [a guilty] plea without
making such inquiry as shall satisfy it that there is a factual basis for the plea."2R As with the tortured confession, so
with the negotiated plea: any case that has resisted dismissal for want of probable cause at the preliminary hearing
will rest upon enough inculpating evidence to cast suspicion upon the accused.
- Both torture and plea bargaining value control
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22
Our law of plea bargaining has not only recapitulated much of the doctrinal folly of the law of torture, complete with
the pathetic plea bargaining system by expanding the potential differential between sentence following safeguards of
voluntariness and factual basis that I have just discussed, but it has also repeated the main institutional blunder of the
law of torture. Plea bargaining concentrates effective control of criminal procedure in the hands of a single officer.
Our formal law of trial envisages a division of responsibility. We expect the prosecutor to make the charging
decision, the judge and especially the jury to adjudicate, and the judge to set the sentence. Plea bargaining emerges
these accusatory, determinative, and sanctional phases of the procedure in the hands of the prosecutor. Students of
the history of the law of torture are reminded that the great psychological fallacy of the European inquisitorial
procedure of that time was that it concentrated in the investigating magistrate the powers of accusation,
investigation, torture, and condemnation. The single inquisitor who wielded those powers needed to have what one
recent historian has called "superhuman capabilities [in order to] . . . keep himself in his decisional function free
from the predisposing influences of his own instigating and investigating activity
- Plea bargaining comes from laziness
John H. Langbein The University of Chicago Law Review, Vol. 46, No. 1. (Autumn, 1978), pp. 3-22.
The point has been made, most recently by the Attorney-General of Alaska, that preparing and taking cases to trial is
much harder work than plea bargaining-for police, prosecutors, judges, and defense counsel. In short, convenienceor worse, sloth-is a factor that sustains plea bargaining. We suppose that this factor had a little to do with torture as
well. As someone in India remarked to Sir James Fitzjames Stephen in 1872 about the proclivity of the native
policemen for torturing suspects, "It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor
devil's eyes than to go about in the sun hunting up evidence."If we were to generalize about this point, we might say
that concessionary criminal procedural systems like the plea bargaining system and the system of judicial torture
may develop their own bureaucracies and constituencies. Here as elsewhere the old adage may apply that if
necessity is the mother of invention, laziness is the father.
Alaskan ban
-Alaskan Ban on Plea Bargains did not require substantial increases in resources for a functioning legal system
Teresa White Carns (Project Director -Alaska Judicial Council) and Dr. John Kruse (Research Consultant -Institute
for Social and Economic Research- University of Alaska Anchorage) “ALASKA'S PLEA BARGAINING BAN REEVALUATED” January 1991
The evidence, both statistical and interview, strongly supported the conclusion that while
trials did increase for the first two to three years after the ban, the increase was handled by the system without
significant new resources. Although a backup in civil cases was attributed to the ban at one point,64 no new judges
were added specifically because of the ban. Justice system resources did increase during the years after the ban.
Between 1977 and 1980, justice system operating budgets for state agencies typically increased by 30% to 50%.
Between 1980 and 1986, operating budgets increased by another 67% (courts and public safety) to as much as 300%
(corrections).65 However, the increases arguably were related to population growth and to substantially higher state
revenues, primarily from oil, rather than to policy changes.
WNDI 2007
106761230 3/7/16
33
Cards
-Alaskan Ban on Plea Bargaining yields positive results
Teresa White Carns (Project Director -Alaska Judicial Council) and Dr. John Kruse (Research Consultant -Institute
for Social and Economic Research- University of Alaska Anchorage) “ALASKA'S PLEA BARGAINING BAN REEVALUATED” January 1991
The Council's initial study found that the ban appeared to have had many of the Attorney General's desired effects
without having most of the negative consequences that had been widely predicted. It found that although more trials
occurred immediately after the ban, the system managed to accommodate them without major disruptions. Nor was
there substantial evidence that plea bargaining went underground. Most attorneys and judges interviewed in the
middle 1970s agreed that their opportunities to charge or sentence bargain had been greatly curtailed. In particular,
sentence bargaining, which had been the preferred mode of case disposition, came to virtual halt and most cases
were sentenced at open hearings after the judge heard arguments from both defense and prosecution.13 Some
argued that longer sentences imposed on defendants whose cases had been tried as compared to those who had pled
indicated implicit plea bargaining, and suggested that pleas were just as coerced as if they had been openly
bargained. However, while some sentence differentials persisted after the ban, others disappeared. In short, the ban
appeared to have had many of the Attorney General's desired effects without having most of the negative
consequences that had been widely predicted. In addition, public response was generally favorable. A stiff
screening policy for charges took back charging activities from the police agencies and returned them to prosecutors.
Despite strong opposition from the police at first, most came to agree in the long run they learned to investigate
cases better and that the quality of police work had improved. The ban on plea bargaining had several important
long-term effects that either were agreed upon by most attorneys, judges and police or were suggested by
phenomena that could be measured statistically. Pre-filing screening of cases by prosecutors led to new standards
for police investigations, resulting in increased police professionalism. Sentence recommendations were severely
curtailed and were still very uncommon in 1990. Charge bargaining, which had been secondary to sentence
recommendations as the mode of negotiations prior to the ban, was infrequent for a period of time after the ban, but
during the 1980s became much more important as a means of case disposition. Table 1 shows an overall picture of
case processing and dispositions using data from the original evaluation of the ban and the re-evaluation.
Deterrence
-Plea Bargains promote inequality and inconsistency
Tor, Avishalom (Univ. of Haifa- faculty of law), Gazal-Ayal, Oren (Univ. of Haifa- faculty of law) and Garcia,
Stephen M (Univ. of Michican – Dept of Public Policy), "Fairness and the Willingness to Accept Plea Bargain
Offers" (January 15, 2006). Available at SSRN: http://ssrn.com/abstract=880506
The impact of fairness considerations on defendants' behavior may also have other
fortunate consequences. For instance, the effect of comparative evaluation on defendants'
willingness to accept plea offers may be used to curtail the inequality and arbitrariness of
the sentences generated by plea bargaining. Scholars argue plea bargains lead to
excessive diversity in sentencing, because prosecutors have much room to manipulate
offers without risking rejections, given defendants' awareness of the trial penalty
(Alschuler 1981; Stuntz 2004). This prosecutorial leeway, in turn, results in unequal
treatment of similar cases. Yet, if defendants are averse to comparatively
disadvantageous offers, an increase in the transparency of plea bargaining may curtail the
diversity problem. For instance, if plea bargains were published, or if defense lawyers
were to inform their clients about the common practices of prosecutors in similar cases,
defendants would tend to reject comparatively harsh offers. As a result, prosecutors, who
are interested in maintaining high guilty plea rates, would reduce disparity, arbitrariness
and inequality in plea bargaining.
-Plea bargaining hurts deterrence
Douglas A. Smith The Journal of Criminal Law and Criminology (1973-), Vol. 77, No. 3. (Autumn, 1986), pp. 949968.
Some critics argue that a system of negotiated justice undermines the deterrent effectiveness of punishment and can
be used by influential defendants to evade legal sanctions. Others maintain that defendants with prior criminal
records, and hence more firsthand experience with the justice system, are able to negotiate more favorable sentences.
Proponents of these views see plea bargaining as undesirable because it weakens the deterrent and incapacitative
effectiveness of the law by allowing some defendants to minimize their punishment.
WNDI 2007
106761230 3/7/16
34
Cards
Coercion
- Self-incrimination occurs
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The past few years have witnessed an intensified debate over the propriety of the practice of plea bargaining. This
debate has ranged over a broad spectrum of questions, such as whether the practice is consistent with due process
and equal protection of law and with the theoretical assumptions of theadversarial process, whether it undermines
the accuracy of trials, whether it reduces respect for the judicial process, and whether it places a burden on the right
to trial or impinges upon the right against self-incrimination. In addition to these considerations of procedural
fairness, some critics have argued that the practice is unfair to society because it sentences so lenient that they defeat
the aims of the criminal justice system
- Pleas shouldn’t be induced
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The typical judicial attitude is that guilty pleas ought not to be induced by threats of severity, but that it is perfectly
legitimate to reward such pleas by granting leniency. A 1956 study conducted by the editors of the Yale Law Journal
found that among the 240 judges questioned, 66 percent considered the guilty plea a "relevant factor in sentencing
procedure," and a majority rewarded the defendant pleading guilty with a less severe sentence ( Yale Law Journal,
1956:204). Thus the developing doctrine assumes that the question of voluntariness depends upon whether the plea
resulted from a "threat" or an “offer”
- There is an implied threat to plea bargaining
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Critics of plea bargaining, however, have continued to voice earlier judicial and legislative sentiments condemning
the practice on the ground that the standard of voluntariness cannot be met because the practice is intrinsically
coercive. The criticisms advanced have taken two distinct but related courses.
The first asserts that any difference in the sentences following guilty and not-guilty pleas constitutes an implied
threat that operates to coerce the defendant to plead guilty. For example, Abraham Blumberg (1967:31) argued that
since the jury trial is an undesirable alternative, the threat of it places the defendant on the horns of a dilemma and is
thus one of the most powerful prosecutorial tools to "reduce a defendant's resistance."
-Reasonable people would feel compelled to use plea bargain
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Kenneth Kipnis
[Tlhe same considerations that will drive reasonable people to give in to the gunman compel one to accept the
prosecutor's offer. . . . [Olne can see that, like the gunman's acts, the acts of the prosecutor can "operate coercively
upon the will of the plaintiff, judged subjectively," and both the gunman's victim and the defendant may "have no
adequate remedy to avoid the coercion except to give in." In both cases reasonable persons might well conclude
(after considering the gunman's lethal weapon or the gas chamber) "I can't take the chance." A spineless person
would not need to deliberate.
-Any offer is inherently coercive
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Underlying this line of reasoning is the notion that, because the defendant faces the threat of criminal prosecution,
any offer that allows him to avoid this threat coerces or "induces" his choice. This approach is shared by the authors
of the American Law Institute's Restatement of Contracts: "A threat of criminal prosecution . . . may be of such
compelling force that acts done under their influence are coerced, and the better foundation there is for the
prosecution, the greater is the coercion"
WNDI 2007
106761230 3/7/16
35
Cards
- Inducement places burden on right to trial
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The second criticism of the voluntariness of plea bargaining is broader. It claims that, whether or not threats or other
forms of duress enter into the decision to "cop a plea," the very offer of consideration in exchange for a plea
constitutes an "inducement" that places a burden on the right to trial by undermining the will of the defendant to
exercise it.' This line of argument focuses on the "offer" side of the bargain rather than on any allegation of an
implicit threat, but claims that these offers, if not coercive, at least render suspect the defendant's choice. Thus
Ferguson and Roberts argue that whether a guilty plea is the result of threats, false promises, or misrepresentations,
or merely of a proffered reduction in sentence or charge, it is likely that in either case the accused will still feel the
same pressure to plead guilty. . . . In offering benefits or concessions to accused persons in order to secure guilty
pleas, plea bargaining encourages both the guilty and the innocent to plead guilty. . . . [A]s the concession or
inducement increases, so also does the risk of causing an innocent person to plead guilty. 11974549-501 The
assumption is that the more attractive the offer, the more likely it is that the defendant's acceptance is involuntary.
-Increased punishments without plea undermine voluntariness
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
It is important to note that both sides in the debate agree that threats of increased severity or other sanctions for
pleading not guilty seriously undermine the voluntariness of the plea. What they disagree about is whether offers of
leniency do so as well, and what constitutes a threat or an offer. The character of these disagreements is sometimes
obscured by couching the debate in terms of whether or not the guilty plea is "induced." As we shall see,
"inducement" is a highly ambiguous concept, especially as it is used in this debate.
-Choice can be unfree even when no one is forcing
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Thus the terms "free" and "voluntary" can be used in many different senses depending on the constraints and goals
that are selected. When we ask whether a mentally deranged person is able to make "free choices" we are asking,
presumably, whether he is free from certain physiological or psychological disabilities, to act or choose in rationally
prescribed ways. This is wholly distinct from the question whether a bank teller looking down the barrel of a
shotgun is able to make a "free choice" about handing over the money she has in her hands. She may well be free of
any physical or mental disability. Yet her choice is still "unfree," if in a very different sense of "unfreedom" from
that involved in the case of the mentally deranged person. Indeed, the gunman makes the threat "your money or your
life" just because he is confident that the bank teller is capable of making rational choices. What the bank teller is
not "free" from is a manipulation of her choice situation that makes the option of continuing to conduct her routine
business far less desirable than it normally would be.
-Freedom is destroyed
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
This is the sense of freedom at issue in the question whether a negotiated plea of guilty is "voluntarily" given. Does
plea bargaining structure or manipulate the choice faced by the defendant so that he is deterred from exercising his
right to go to trial? A person's choice may be coerced in this sense, even though it is voluntary in the psychological
sense. And a person's choice may be involuntary even though it is free in the social sense ("not coerced"), as would
be the case if a person under the influence of a hallucinogenic drug decided to "fly" out a third-story window.
Further, as we shall see later, someinstances of coercion are successfully coercive just because they also involve
psychological unfreedom, or duress
-Inducement is vague
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
This question points out an ambiguity in the term "inducement" which tends to confuse discussions about the
voluntariness of plea bargaining. Certainly the defendant is being given an inducement to plead guilty when he is
given a promise of leniency but the question is, what kind of an inducement? Is it more like the inducement given
me to sell the house, or the inducement the gunman is giving the bank teller? Since the word is used to cover both
cases, it does not seem very helpful in parsing out the issue of voluntariness.
WNDI 2007
106761230 3/7/16
36
Cards
-Defendant influenced in their decision
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The second and third levels, unlike the fist, involve impositions or constraints that constrict the range of options and
deter a person from doing what, in some sense, he would prefer to do. They differ from the fourth level in that a
person coerced still chooses his course of action, whereas a person who is the victim of force does not exercise any
choice at all. Hence, though the use of force is the most direct and extreme form of social unfreedom, it is not,
strictly speaking, a form of "inducement," since it does not influence choice but bypasses choice altogether.Wf
course, one of the most common ways of influencing the choice of another is to threaten the use of force against
him, but the threat of force is not the same kind of imposition as the actual use of it.
-Philosophically choosing to do something can be coerced
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
I have suggested that a coercive inducement is one that leads a person to choose a course of action he does not
"really" want to carry out but chooses because of constraints imposed by others. It is not fully his own choice. This
is, however, a problematical rendering of the concept of coercion. It raises questions that have been the subject of
philosophical debate for centuries, not the least crucial of which is how a person can choose to do something he does
not wish to do. For it seems that if a person chooses to follow a certain course of action he must in some sense desire
to engage in it.
-Analytical proof of coercion
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The case of the thug who jumps from an alley to present his victim with the option of handing over her purse and
jewelry or losing her teeth is also one where an undesirable means (giving up the purse) is necessary to a desired end
(dental integrity). The important difference is that in the case of the dentist there is an appropriate relation or
congruence between the action (undergoing painful therapy) and the reason for it (dental integrity), whereas in the
case of the thug there is a severe incongruence between end and means. In the normal scheme of things one does not
expect to have to hand over one's purse and jewelry in order to preserve one's dental integrity. Our hapless victim
"minds" performing this action for this particular reason. That is why she perceives the thug's "offer" to respect her
teeth for a price as an imposition.
-Threats can make consequences of actions worse
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
It is commonly held that only threats can be coercive-that offers and other interventions or manipulations of the
consequences of another's action cannot coerce his choice. In an ithenvise very helpful article, Robert Nozick
defines coercion in terms of threats alone. Only threats, he argues, can make the consequences of another's actions
worse, or less desirable, for him than the "normal or expected course of events" (Nozick, 1969:440ff.). This
assumption is shared by many defenders of plea bargaining, for whom the issue seems simply to be whether the
court or prosecutor is offering a more lenient charge or sentence, or threatening a more severe one. As long as only
offers are made, it follows from this view that the voluntariness of the plea is not jeopardized.
-Threats are coercive
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
In the same way offers made under certain conditions can operate coercively on the choice of the offeree. An offer
to a person so circumstanced that he cannot refuse it (whether or not the circumstances are imposed by the offeror)
can create a choice situation less desirable than the one he can claim in the normal or expected course of events. For
example, suppose the only pharmacist in an isolated town offers to sell the only available insulin to a wealthy
diabetic who lurches into the store with only hours to live if he does not receive the drug, on condition that the latter
agree to will his entire estate to the pharmacist.
Is the diabetic being coerced by the pharmacist to pay this price? In a similar example involving a drug addict and a
pusher, Robert Nozick argues that if the pusher is not the addict's usual supplier, then his demand that the latter pay
for his drugs by beating up a third person is not coercive. He is merely making the addict an offer he cannot refuse
WNDI 2007
106761230 3/7/16
37
Cards
-Things can coercive to different individuals
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
We have seen that the concept of coerced choice always contains an implicit reference to some situation of normal
or expected choice. This aspect of the concept is one of the most difficult to assess in actual situations. The "normal
or expected" course of events can be what usually happens in the course of nature, standard procedure in a particular
institutional or social practice, prevailing legal, moral, and customary norms, or critical ethical judgments of how
things "ought to be" (see n.12, supra). What might be coercive from one point of view might not be from another.
This means that it is sometimes necessary to determine which context is relevant to the choice at issue.
-pre-prosecution forces defendant to “choose”
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Many of the most vigorous critics pick the pre-prosecution choice situation as the "normal course of events" with
which to compare the plea bargain. For example, Kenneth Kipnis asserts that the defendant is "forced to choose"
between the certain lenient sentence and the uncertain severe sentence (1976:98-99). In one sense this is certainly
true. Viewed from the point of view of the pre-prosecution situation, the defendant is being coerced, even forced, to
make a choice. He is even being coerced to choose the guilty plea and the lenient sentence over the trial because the
former alleviates the duress of the harsher sentence to which the law is threatening to subject him, clearly against his
will. His choice is, indeed, less desirable than it would be were no one threatening to prosecute him.
-Any defendant who chooses plea is being coerced in some way
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
But this is hardly the proper norm against which to assess the defendant's choice. The question is not whether the
defendant is being coerced, or forced, to make a choice between trial or no-trial; certainly he is. Nor is it whether the
defendant is being coerced by the prosecutorial process to plead guilty; this too is true. Any action taken by a
defendant to alleviate the exigencies of his situation, including a choice to plead not guilty and go to trial if that
seems the best way out, is coerced by the prosecutorial process. Rather, the question is whether one alternative (the
guilty plea) is made preferable to the other (trial) by coercive incentives that are not themselves a part of the normal
prosecutorial process. Or alternately, it is whether the right to trial is being "burdened" with conditions not
"normally" present, which prod the defendant's choice in the direction of waiving the right.
-Increased risk in trial coerces
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
This confirms that the "normal choice situation" against which to evaluate plea bargaining is not the pre-prosecution
choice situation but the normal or expected choice situation faced by a defendant in the normal (intrinsically
coercive) prosecutorial process. But what is the "normal prosecutorial process" with which the defendant's bargain
situation is to be compared? It is the set of options the defendant would face in a no-bargain prosecutorial system
that meets constitutional and critical moral standards and possesses similar statutes, procedures, and protections at
trial and similar risks of conviction and punishment. A legitimate fear of those who question the voluntariness of the
plea bargaining process is that it tends to increase the exigencies of the trial option, thus making the offer of leniency
no more desirable to the defendant than the outcome he could expect in a reasonably just no-bargain system.
- Burden of trial coerces toward plea bargain
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
If any is altered in such a way that the prospect of a trial becomes signicantly more burdensome to the defendant,
then it is likely that the defendant's choice situation is worse than the choice situation present in the no-bargain
system. This is true even though in the bargain situation the defendant is being offered promises of leniency that
make a guilty plea preferable to the trial option. For there is no guarantee that the treatment "offered" under these
conditions is more lenient than the treatment one would receive after trial in the no-bargain system. If it is not, the
defendant has been induced to plead guilty by a concession that is only apparent. Thus, if the choice situation of the
defendant who is bargaining for leniency presents a trial option more onerous than the normal trial process, the
conditions of voluntary choice we have identified would be abrogated and the choice, therefore, coerced
WNDI 2007
106761230 3/7/16
38
Cards
-Must fulfill due process but bias will remain
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Noncoercive plea negotiation would require then, that at least the following conditions be met. First, there must be
an assurance of full due process at trial if the defendant refuses a bargain and opts for trial. The aspect of plea
bargaining that seems most likely to detract from this requirement is the involvement of the judge in the
negotiations, either directly or indirectly. A judge who has been party to bargaining that failed to obtain a guilty plea
could seek to punish the defendant, either in the way he conducts the trial or, if the jury convicted, in his sentence.
To help guard against this burdening of the trial, and against the equally important fear of it by the defendant, it
would be advisable either to eliminate judicial sentencing discretion or to create separate benches, one of which
would conduct the bargaining process and the other the trial
-Can’t see how coerced due to prosecutor power
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The difficulty here is to determine the "normal" practice of charging. Even a theoretical standard of proper charging
cannot be derived from the penal philosophy underlying the system the way a "normal" sentence can be. Since the
prosecutor in a plea bargain system tends to start with as many or as high charges as he reasonably can in order to
optimize his bargaining power, this may skew expectations throughout the legal order about what constitutes
"normal" charging. If this does happen, with the result that more counts are pressed at trial, the choice situation of
the defendant has again been worsened by the bargaining, not improved.
-Threat to throw the book
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Fourth, there must be no appreciable increase in the sentence-risk faced by the defendant in the plea bargain system.
This, of course, rules out any practice of "over-recommending" in prosecutorial sentence recommendations to the
courts, as well as threats to "throw the book" at defendants who are being encouraged to cop a plea. Here, again,
there is the difficulty of determining whether or not sentences following trial convictions are in fact being inflated
beyond the "normal." If, as I suggested earlier, the best measure of what is consistent with the "prevailing penal
philosophy" is the actual sentencing practice in the no-bargain system, how shall we know whether sentence
inflation is occurring once we are in a bargain system? As plea bargaining becomes more pervasive, there is likely to
be pressure to increase the severity of sentences following trial convictions: prosecutors can strengthen their
bargaining positions by increasing sentence risk at trial, and legislatures may respond to public fear of leniency or
"criminal-coddling" generated by widespread plea bargaining by increasing the statutory maxima. These slow
adjustments of the system occur imperceptibly. Nevertheless, they tend to make the "offers" of the plea bargaining
system more apparent than real when viewed against the backdrop of the normal no-bargain system. I am not sure
there is any simple way of insuring against this evolutionary process, especially in the absence of a shared theory of
just punishment that could serve as a constraining criterion.
-Risks of trial are distorted
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
A fifth condition protecting the voluntariness of the plea bargain concerns the nature of information available to the
defendant in choosing whether or not to plead guilty in exchange for leniency. It is not enough that the trial option is
not in fact burdened by the practice of plea bargaining; it is equally necessary that the defendant knows this to be so.
Consequently, it is essential not only that the defendant have access to the resources he needs to conduct a trial if he
should choose it—especially competent counsel-but that the information he receives through counsel provides him
with an accurate assessment of the consequences of his choice to plead guilty or not guilty. The usual plea
bargaining practice gives judge, prosecutor, and defense counsel incentives to distort the actual risks involved in
exercising the trial option. Judge and prosecutor share an interest in moving the docket. The prosecutor is also
seeking the best "deal" he can get, as well as the best possible conviction rate. If he can lead the defense to believe
that the probabilities of conviction or the sentence risks are higher than they really are, he has a better chance of
securing a guilty plea. The defense attorney may also have incentives to dispose of his cases by offering quick guilty
pleas-both economic self interest and maintaining a reputation with the prosecutor as a "good man to deal with."
Alschuler (1968:72ff.) presents an excellent illustration of how prosecution and defense can collaborate to bluff a
defendant into pleading guilty.
WNDI 2007
106761230 3/7/16
39
Cards
-Punishment for not pleading guilty
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
The most persuasive examples of coercive plea bargaining adduced by those who question the voluntariness of
negotiated pleas usually involve the threat or imposition of sentences that violate the sense of fairness shared by the
critic and his readers, although they technically lie within the legal range of sentence options. For example,
Alschuler (supra: 242) points to the recent decision of the United States Supreme Court in Bordenkircher v. Hayes,
(98 S. Ct. 663, 1978) as a clear example in which the defendant was threatened with punishment forpleading not
guilty, and punished when he so pleaded.18 For Alschuler, unlike the majority of the Court, the case is a flagrant, if
unsuccessful, attempt by a prosecutor to coerce a defendant to plead guilty.
-Prosecutors bluff to coerce pleas
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
There is no way to guaranteee that prosecutors do not bluff in order to coerce guilty pleas. Several commentators
have recommended strengthening pretrial discovery so that the defense can make a more accurate assessment of the
probabilities of conviction on each charge (e.g., Church, supra). But this would not ensure that such information was
communicated by the defense attorney to his client. inimizing the benefits thatdefense counsel anticipates from an
expeditious guilty plea would remove some of his incentives to put coercive pressure on his client. Increasing public
defender staffs and raising the fees paid appointed counsel to a level commensurate with those charged paying
clients would also move in this direction.
-Cant gauge good plea offers
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Not every offer of concessions to a defendant is a good offer. Suppose a prosecutor gives me a choice between a ten
percent chance of conviction at trial followed by a sentence to the statutory maximum of twenty-five years in prison,
and pleading guilty to a lesser charge that carries a sentence of twenty years. If I am even minimally reasonable I
will reject this offer without hesitation. As in any institutionalized negotiation, plea bargaining is guided by a rough
standard of reasonable trade-offs that weighs a severe sentence discounted by the probabilities of conviction at trial
against the 100 percent probability of the more lenient sentence given for a guilty plea. Although relative
preferability is not always easy to determine, in part because individual preferences differ (which is preferable, a ten
percent chance of the gallows or the certainty of life imprisonment?), there is such a thing as a ridiculous or terribly
poor offer, as my fist example shows. Thus, we should add a sixth condition of the "normal and expected choice
situation" against which the plea bargain is assessed: the prosecution must make a "reasonable offer" of leniency in
exchange for a guilty plea--one that is preferable to the prospects of trial.
-Under duress, the defendant is coerced
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
A defendant who is offered leniency may be in a better choice situation than he was before but, as in our drug
examples, his choice situation may still not be what it should be. And if, for some reason, he "cannot" refuse the
offer, his choice is coerced. The sixth condition of the "normal or expected choice situation" shows that not every
offer of leniency to a defendant is as desirable as it should be, even though it may be more desirable than no choice
at all. If the defendant is under such duress that he is incapable of refusing even an unfair offer, then his "choice" to
plead guilty is coerced.
-Steps would have to be taken to change system
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
A person who does pot have the physical means to go to trial cannot refuse an alternative to trial no matter how bad
the alternative is. If he is given the choice between a highly unlikely 25-year sentence following trial and the
certainty of a 20-year sentence following a guilty plea, he has no choice but to plead guilty. A person without access
to counsel, or one for whom the costs of trial would impose severe financial or other hardship, is under such duress
that he cannot refuse a poor offer. A noncoercive plea bargaining system would require relaxation of the sharp
distinction between indigent and nonindigent defendants in the criteria of eligibility for state-subsidized counsel. If
steps are taken to minimize the pressures on criminal defendants to accept poor offers, it is not so crucial to ensure
that poor offers are not made.
WNDI 2007
106761230 3/7/16
40
Cards
-Defendants can be psychologically coerced
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Duress can be psychological as well as physical. Like the drug addict who cannot refuse an overpriced "fix," a
defendant can be under such psychological compulsion that he is driven by forces beyond his control to accept a
ridiculous or unfair offer of leniency. It is not totally implausible to suggest that the
risk of certain types of sanctions (e.g., death) or conviction of a highly opprobrious charge (e.g., child molestation)
could drive some defendants to accept a poor offer in order to avoid them. Justice Brennan, dissenting in North
Carolina v. Alford, wrote that Alford was "so gripped by fear of the death penalty that
his decision to plead guilty . . . was the product of duress as much so as choice reflecting physical constraint" (400
U.S. 25, 40, 1970). I am inclined to agree with Brennan on this point, but to reject his conclusion &om this fact
alone that Alford's guilty plea was coerced. For the probability that Alford would be convicted of first-degree
murder and sentenced to death was so high that the offer of 30 years imprisonment for a guilty plea to second-degree
murder was not unreasonable. It is not enough that choice be made under psychological or physical duress; to be
coerced it must also involve an unfair offer that takes advantage of the duress.
-Can’t prove not coerced
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
However, I have identified the conditions that would have to be met before we could be reasonably confident that
the choice of a defendant to plead guilty for considerations offered by the prosecutor or court is free from coercive
restraint. But this does not exonerate the practice of plea bargaining from either the charge of coercion or the various
other criticisms that can be leveled against it. First, I am not convinced that the conditions of voluntary, noncoerced
choice are being met in present plea negotiation practice, nor even that they can be achieved by initiating reforms.
This is an empirical question which I leave to the social scientists.
-Unconstitutional conditions are involved with plea bargain
Conrad G. Brunk Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979), pp.
527-553.
Second, serious questions remain about a truly noncoercive plea bargaining system. For example, even if plea
negotiations involved only "pure-and-simple offers" of leniency it might be inappropriate for such leniency to be
conditioned upon the quasi-"pricing system" implied in a system of regular plea bargaining. Albert Alschuler's
question whether this does not place unconstitutional conditions upon the granting of government benefits
(Alschuler, 1975:59-65) is pertinent, quite apart from the issue of voluntariness and coercion. Notwithstanding
Brady v. U.S.and Rule 11 of the Federal Rules of Criminal Procedure, voluntariness is not the only consideration in
determining the propriety of the negotiated guilty plea.
WNDI 2007
106761230 3/7/16
41
Cards
Defendant
- Plea bargain can benefit defendant
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Although there are obvious differences, plea bargaining operates in a manner roughly analogous to pretrial
negotiations in a civil suit. A plaintiff may offer the defendant a chance to "settle" the suit by paying less than the
amount sought at trial. Like the criminal defendant, the civil defendant faces a mandatory trial with an uncertain
outcome and judgment should he decline the settlement offered. The attractiveness of a particular offer will depend
on the strength of the plaintiffs case. Yet surely it would be nonsensical to argue that the civil defendant's
constitutional right to a jury trial is "burdened" by these negotiations, even though they are supported, indeed
encouraged, by the legal system. The criminal defendant, like the civil defendant, possesses the right to a jury trial
up to the time he decides it would be preferable to accept a nontrial disposition. It is precisely his possession of that
right-with the uncertainty for both sides that its exercise necessarily entails that allows bargaining to occur. If the
sole benefit a defendant expects from a jury trial is the chance for acquittal, it is difficult to argue that the state
somehow burdens the right to trial merely by posing an alternative that may be more attractive.
-Both the state and defendant benefit
Douglas A. Smith The Journal of Criminal Law and Criminology (1973-), Vol. 77, No. 3. (Autumn, 1986), pp. 949968.
Plea bargaining also accommodates the interests of both defendants and the state. Prosecutors benefit from plea
bargaining because it enables them to secure high conviction rates while avoiding the expense, uncertainty, and
opportunity costs of trials. By obtaining guilty pleas, prosecutors can pursue more cases, potentially resulting in
greater aggregate deterrent or incapacitative effects with a finite amount of resource
-Beneficial to defendant based on probability of being found guilty
Douglas A. Smith The Journal of Criminal Law and Criminology (1973-), Vol. 77, No. 3. (Autumn, 1986), pp. 949968.
Defendants may also benefit from plea bargaining, especially if they are factually guilty. Indeed, it is the
presumption of factual guilt in cases that are not quickly dismissed that drives the process of negotiation. For the
defendant, the presumption of guilt focuses the negotiation on the type and severity of the sentence." A defendant's
decision to plead guilty may be rational if the sentence he receives by pleading guilty is implicitly based on both the
probability that he would be convicted at trial and the likely sentence if convicted.
- Plea bargaining serves public interest
Stephen J. Schulhofer The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19792009
For similar reasons, negotiated resolution of criminal cases appears to serve the interests of all concerned. The
prosecutor's objective in each case is to obtain the optimum level of punishment at the least cost, in order to free
litigation resources for other prosecutions that can bring additional deference benefits. By tailoring each plea offer to
the expected costs of trial, the likelihood of success, and the expected trial sentence, the prosecutor can maximize
the deterrence obtainable from the finite resources at her disposal. Similarly, the defendant, who seeks to minimize
punishment, will be better off accepting a plea offer if the contemplated punishment is lower than the anticipated
posttrial sentence, discounted by the possibility of acquittal. Plea bargaining, from this perspective, not only saves
court time and litigation costs, but serves both the public interest in maximizing deterrence and the defense interest
in minimizing the expected sentence.
- Defendant offers benefits to the state during plea bargaining
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234.
The practice of giving defendants incentives to plead guilty would not properly be described as plea bargaining
unless the defendant has something to offer the state. Defendants may have much to offer. A defendant may offer
crucial testimony against other (potential) defendants. By pleading guilty, the defendant lowers costs: the state need
not support the defendant while he awaits trial in jail; the prosecutor need not prepare or try the case in court; the
state need not track down witnesses or compel them to appear in court; police need not take time off to testify; juries
need not be called or paid; judges need not preside over trials; courts and offices need not be built or staffed
WNDI 2007
106761230 3/7/16
42
Cards
- Defendants can move toward rehabilitation quicker
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
[a defendant can] avoid extended pretrial incarceration and the anxieties and uncertainties of a trial; he gains a
speedy disposition of his case, the chance to acknowledge his guilt, and a prompt start in realizing whatever
potential there may be for rehabilitation
-Courts will often feel bound to defendant with plea bargaining
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Plea bargaining is commonly characterized as a strategic rather than an adjudicative or a sentencing activity Its
purpose is believed to be the negotiated surrender of the defendant's procedural rights in return for tactical
concessions uniquely within the discretion of the prosecutor to grant.' It is generally assumed that the calculation of
the costs and risks of litigation and the subsequent choice of litigation strategy are tasks which the parties
themselves are best qualified to perform. If the defendant wishes to waive his procedural rights, the courts will
customarily feel bound to respect his tactical judgment-provided, of course, that this judgment is not the product of
undue coercion or misinformation. Likewise, if the parties to litigation, civil or criminal, voluntarily agree to limit
the issues they will contest before the court, the judge will feel similarly bound to defer to their tactical decision to
forego adjudication.
-Defendants can exchange rights to make them better off
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Defendants can use or exchange their rights, whichever makes them better off. So plea bargaining helps defendants.
Forcing them to use their rights at trial means compelling them to take the risk of conviction or acquittal; risk-averse
persons prefer a certain but small punishment to a chancy but large one. Defendants also get the process over sooner,
and solvent ones save the expense of trial. Compromise also benefits prosecutors and society at large.
-Benefits to defendant supplied extra rights in criminal process
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
Criminal defendants had both a clear incentive and a clear capacity to plea bargain. Their incentive lay in the
difference between the severe sentence that loomed should the jury convict at trial and the more lenient sentence
promised by the prosecutor or judge in exchange for a plea. At first glance, the intensity of defendants' desire to
plead appears to have been a simple function of the power and inclination of the prosecutor or judge to widen this
difference. And defendants' power to plead was even clearer and more constant: As the holders of the right to a
jury trial, they held the power to waive it. Even when a defendant pled guilty to a capital charge and thereby assured
his own execution, the "court ha[d] no power absolutely to refuse" his plea.
-Defendant can protect self with withdrawing of plea
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
Murat W. Hopkins, an Indiana practitioner, published an article onplea-withdrawal in the Criminal Law Magazine:
If, by reason of any side agreement with the prosecuting officer, a defendant under a criminal charge enters a plea of
guilty, a more severe sentence than that agreed upon should not be awarded; and if a sentence more severe than the
one indicated be inflicted, the defendant should be allowed to withdraw his plea of guilty, and plead not guilty, if he
desires
-Prosecutor and defendants want to pursue plea bargain
Kenneth Kipnis Ethics, Vol. 86, No. 2. (Jan., 1976), pp. 93-106
Plea bargaining involves negotiations between the defendant (through an attorney in the standard case) and the
prosecutor as to the conditions under which the defendant will enter a guilty plea. Both sides have bargaining
power in these negotiations. The prosecutor is ordinarily burdened with cases and does not have the wherewithal to
bring more than a fraction of them to trial. Often there is not sufficient evidence to ensure a jury's conviction. Most
important, the prosecutor is typically under administrative and political pressure to dispose of cases and to secure
convictions as efficiently as possible. If the defendant exercises the constitutional right to a jury trial, the prosecutor
must decide whether to drop the charges entirely or to expend scarce resources to bring the case to trial. Since
neither prospect is attractive, prosecutors typically exercise their broad discretion to induce defendants to waive trial
and to plead guilty.
WNDI 2007
106761230 3/7/16
43
Cards
-Defendants have right to move casual trial process
Robert E. Scott; William J. Stuntz The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992),
pp. 1909-1968.
Any change in the structure of plea bargaining will necessarily have far-reaching feedback effects on the trial
process itself.. In sum, there is no preordained right to trial at stake in the plea bargaining debate. Rather, there is a
choice between (1) a right (that may be bought and sold) to an elaborate trial, and (2) an inalienable right to a more
casual trial process
-More beneficial for defendant to plead
Kenneth Kipnis Ethics, Vol. 86, No. 2. (Jan., 1976), pp. 93-106
From the defendant's point of view, such prosecutorial discretion has two aspects: it darkens the prospect of going to
trial as it brightens the prospect of pleading guilty. Before negotiating, a prosecutor may improve his bargaining
position by "overcharging" defendants or by developing a reputation for severity in the sentences he recommends to
judges. Such steps greatly increase the punishment that the defendant must expect if convicted at trial. On the other
hand, the state may offer to reduce or to drop some charges, or to recommend leniency to the judge if the defendant
agrees to plead guilty. These steps minimize the punishment that will result from a guilty plea. Though the exercise
of prosecutorial discretion to secure pleas of guilty may differ somewhat in certain jurisdictions and in particular
cases, the broad outlines are as described.
-Plea bargain helps with guilt
Kenneth Kipnis Ethics, Vol. 86, No. 2. (Jan., 1976), pp. 93-106
Apart from prosecutorial pressure, other factors may contribute to a defendant's willingness to plead guilty: feelings
of guilt which may or may not be connected with the charged crime; the discomforts of the pretrial lockup as against
the comparatively better facilities of a penitentiary; the costs of going to trial as against the often cheaper option of
consenting to a plea; a willingness or unwillingness to lie; and the delays which are almost always present in
awaiting trial, delays which the defendant may sit out in jail in a kind of preconviction imprisonment which may not
be credited to a post conviction sentence. It is not surprising that the right to a trial by jury is rarely exercised.
-Both parties benefit from plea
Kenneth Kipnis Ethics, Vol. 86, No. 2. (Jan., 1976), pp. 93-106
Where both parties are satisfied with the terms of an agreement, it is improper to interfere. Generally speaking,
prosecutors and defendants are pleased with the advantages they gain by negotiating a plea. And courts, which gain
as well, are reluctant to vacate negotiated pleas where only "proper" inducements have been applied and where
promises have been understood and kept. Such judicial neutrality may be commendable where entitlements are
being exchanged
-Plea bargain allows for custom tailored punishments
Bruce H. Kobayashi The RAND Journal of Economics, Vol. 23, No. 4. (Winter, 1992), pp. 507-517.
Even though they were participants in the same common scheme, defendants' roles in a crime as well as the strength
of the evidence against them will often vary greatly from defendant to defendant. The prosecutor's treatment of an
individual defendant will also vary based upon these differing characteristics. In many cases, crimes are pursued
with unindicted co-conspirators. And among those convicted, plea bargaining yields a wide variation of
punishments.
-Plea bargain helps deal with multiple defendants for single crimes
Bruce H. Kobayashi The RAND Journal of Economics, Vol. 23, No. 4. (Winter, 1992), pp. 507-517.
When the prosecutor faces multiple defendants, the size of the plea bargain offered adefendant was shown to be a
function of his ability to increase his co-conspirator's probability of conviction in addition to his ex ante probability
of conviction. If a defendant's ex ante probability of conviction is positively correlated with a defendant's ability to
raise his coconspirator's probability of conviction, a plea bargain that gives the most culpable defendant a lower
penalty can maximize the sum of the penalties placed on individuals in the conspiracy.
WNDI 2007
106761230 3/7/16
44
Cards
- Trials are physiologically unpleasant but plea bargain reduces the stress
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
Trials are costly and psychologically unpleasant. Our adversary process was hardly designed to be otherwise.
Criminal trials produce one "winner" and one "loser." As the uncertainty of that result increases, so does the
incentive for both sides to find some mutually satisfactory accommodation in which the benefits of success at trial
are discounted by the possibility of failure.
System
The Relevance of Plea Bargaining is in the Past
George Fisher. Stanford, Calif Plea Bargaining’s Triumph: A History of Plea Bargaining in
America. Stanford, Calif.: Stanford University Press, 2003.
In her study of the Boston Police Court, for example, Vogel argues that plea bargaining took hold during the first
half of the nineteenth century because it served the political needs of the city’s Whig elites in an era of rising social
unrest and a broadening suffrage. Boston magistrates and the Whigs who appointed them embraced plea bargaining
as a means to obtain easy convictions and extend mercy at the same time, thus maintaining order while shoring up
their own popular political support.
Plea Bargaining is used a lot
Michael WILLRICH [Department of History, Brandeis University, is the author of City of Courts: Socializing
Justice in Progressive Era Chicago] 2003 Reviews in American History Pg. 430
Plea bargaining was first exposed as a ubiquitous practice in the 1920s. Reform-minded legal academics and social
scientists studying the Prohibition–era crisis of urban law enforcement discovered with alarm that overtaxed
prosecutors were skirting the judicial process by cutting deals right and left.2 In Al Capone’s Chicago, the Columbia
professor Raymond Moley reported, a mere 209 out of a total 13,117 felony prosecutions initiated in 1926 resulted
in jury convictions.
The development of procedural due process controls on police investigations and jury trials increased the pressure
for some adaptation like plea bargaining.
John F. Padgett, The Emergent Organization of Plea Bargaining, The American Journal of Sociology
Exclusionary rules of evidence and restricted powers of judicial summation increase the inherent unpredictability of
juries, thereby intensifying the prosecutor's desire for extra-trial control. Constitutional limitations on police
investigations (including right to defense counsel, restrictions on pretrial detention, search and seizure rules, and
limitations on induced confessions) weaken on average the strength of the state's case, thereby undermining the
built-in leverage of the prosecutor.
JURIES HAVE BECOME SECONDARY IN THE COURT SYSTEM.
J. A. C. Grant, The American Political Science Review, Vol. 25, No. 4. (Nov., 1931), pp. 986
In this district, of course, the sole effect of the Patton decisions has been to enable the court and the United States
attorney's office to breathe a little more freely while following out their old practice. "Today," writes Judge Johnson,
"at least 90 per cent of all our criminal cases [in this district] are tried to the court without a jury by . . . agreement of
counsel. The court does not urge or even encourage this . . . but the lawyers desire to try their criminal cases in this
way. . . . In difficult and serious cases I much prefer to have a jury dispose of the facts than to dispose of them
myself. Nevertheless, the fact remains that trial by jury, in felony as well as misdemeanor, now occupies a very
secondary place in this jurisdiction.
-Plea bargaining that meets these criteria won’t be flawed
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
The strongest critics of plea bargaining argue that the practice should be abolished because it coerces defendants to
give up their right to trial and because it results in irrational sentences for criminal defendants. Neither charge is
applicable to a system of plea negotiations that meets four basic criteria: (1) the defendant always has the alternative
of a jury trial at which both verdict and sentence are determined solely on the merits; (2) the defendant is
represented throughout negotiations by competent counsel; (3) both defense and prosecution have equal access to
relevant evidence; and (4) both possess sufficient resources to take a case to trial. The most fruitful direction of
reform is to seek to achieve these conditions rather than attempt to eliminate plea bargaining.
WNDI 2007
106761230 3/7/16
45
Cards
-Plea bargaining is necessary for justice
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
"Plea bargaining" . . . is an essential component of the administration of justice. Properly administered, it is to be
encouraged. If 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.
-Plea bargaining is constitutional
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
A system that confers sentence discounts on those defendants who waive an adversarial determination of guilt need
violate neither the tenets of rationality in the penal law nor the constitution. Negotiated dispositions in a properly
constructed system will approximate the probable results of trial, and any remaining distance between a bargained
disposition and what "would have been" the result of trial involves no inherent illegitimacy.
-Plea bargain encompasses everything a trial utilizes
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
The point is, however, that at the time of plea negotiations a criminal case has progressed through a police
investigation, a prosecutorial (and at least a formal judicial) determination of "probable cause," and the final review
of the evidence by a prosecutor prior to plea discussions with defense counsel. At this point most prosecutors
assume that those defendants remaining in the system are very probably factually guilty of the offense charged, or of
one closely related to it.
- Risk acquittal is worse of
Thomas W. Church Jr. Law & Society Review, Vol. 13, No. 2, Special Issue on Plea Bargaining. (Winter, 1979),
pp.509-525.
A conscientious prosecutor, mindful of his responsibility to protect the public welfare, might rationally conclude that
the certainty of a lower sentence might better serve the public than the risk of acquittal at trial. In this sense, the
prosecutor does not make the defendant a concession for his plea any more than the civil defendant receives a
concession from the plaintiff who agrees to an out-of court settlement. Both defendants exchange their chance of
complete exoneration for the security of a judgment less onerous than that which might be imposed after trial. Each
party thus trades the possibility of total victory for the certainty of avoiding total defeat.
-Measures are taken to ensure fairness of plea bargains within the legal system
Lisa Kate Osofsky Times Newspapers June 12, 2007
http://business.timesonline.co.uk/tol/business/law/article1915207.ece
In America, plea bargaining is not restricted to financial crimes and more than 95 per cent of federal criminal cases
are resolved through guilty pleas. This benefits society in three ways – by being efficient, transparent and fair. Few
would doubt the system’s efficiency – a guilty plea speeds up the judicial process and cuts costs – but that on its
own is not a sound enough argument in favour. It is also imperative that the system is fair.
Important safeguards include legal representation at every stage, even before a plea is registered, and guidance on
sentencing to help to ensure that defendants make an informed and voluntary decision.
Federal judges determine whether there is a factual basis for a guilty plea and they do this in open court where the
defendant is placed under oath and asked to describe what he did to make him plead guilty. Judges also ensure that
the defendant is aware that a guilty plea will mean that he forfeits his right to a trial and that he knows the full range
of penalties he faces upon conviction. If judges do not like what they hear, they can reject the plea. Indeed, at no
time is the court required to accept a guilty plea simply because the parties want to resolve the case short of trial.
In addition, before the plea is agreed, a defendant discusses with his attorney the charges and the evidence against
him. The parties negotiate written plea agreements so that the terms are clear and in black and white. Under the
protection of written contracts (known as proffer letters) defendants offer cooperation. Provided that the defendant is
truthful, these discussions are inadmissible should the case go to trial. The caveat ensures that a defendant benefits
only from cooperation that is truthful and complete and anyone who changes his story risks indictment for perjury or
impeachment at trial.
WNDI 2007
106761230 3/7/16
46
Cards
-Plea Bargaining is beneficial to society and is the best method to maintain justice
Lisa Kate Osofsky Times Newspapers June 12, 2007
Plea bargaining can also go a long way towards eliminating last-minute changes of plea to guilty, again wasting
scarce resources. The National Audit Office has put the annual cost of cracked trials at £29 million. As for speeding
up the process, as time passes the likelihood that witnesses will remember the events, let alone stay in locations
where they can be found, diminished dramatically. Thus, justice delayed can be justice denied. But plea bargaining
is not just about the defendant and saving the State money. In the US it also offers benefits to the victims of the
crime. First, victims provide their perspectives throughout the investigation and during the plea negotiations,
keeping them at the heart of the process. In addition, they are spared the often daunting prospect of testifying.
Society can also benefit because a system that encourages the cooperation of defendants helps to build insight into,
and understanding of, how a crime occurs. This permits society to guard against such acts in the future.
-Plea Bargaining is the only avenue for a functioning legal system
Steeve Mongrain and Joanne Roberts SFU Economics, Simon Fraser University: Dept of Economics, “Plea
Bargaining with Budgetary Constraints” May 2007
In the present U.S. judicial system, few criminal cases are determined by trial. In fact, approximately 90% of cases
are resolved by guilty pleas. Although television has popularized the idea that many plea bargains are made in
exchange for information, the large majority of the plea bargains in reality are done to save resources. As
highlighted by Fisher (2000) or Landes (1971), because of severe budgetary pressure on prosecutors, this method of
resolving cases is viewed as an essential tool for managing large case loads. Plea bargaining saves money, or
perhaps we should more precisely say that it saves time, by reducing the time spent in court by both prosecutors and
judges. Court time is often seen as the most significant constraint to a smoothly functioning legal system. In fact,
empirical evidence, dating as early as Alshuler (1968), reveals that plea bargaining became more prevalent as these
types of constraints became more binding.
-Supreme court has legitimized plea bargain
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
In the vast majorityof cases, guilt and the applicable range of sentences are determined through informal
negotiations between the prosecutor and the defense attorney.' while it has been argued that plea bargaining burdens
the defendant's constitutional right to a trial by imposing heavier sentences on those who are convicted after trial, the
Supreme Court repeatedly has rejected this argument and upheld plea bargaining.'
-Plea bargain conserves resources
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
The primary advantage of plea bargaining is that it reduces systemic costs by avoiding expensive trials. Plea
bargaining enables courts to process cases more expeditiously than under the traditional model. This acceleration
mitigates the hardships of pretrial detention, decreases the period in which those defendants who can afford bail may
commit crimes while awaiting trial, and brings the sanction closer to the time that the criminal act itself was
committed. In addition, since a guilty plea operates as a waiver of all nonjurisdictional objections,'"' plea bargaining
enhances the finality of criminal dispositions and thus conserves valuable appellate resources.
-Plea bargaining allows for a better model then traditional courts
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
plea bargaining has the potential of alleviating these problems of the traditional model. Sentencing is less unilateral
than it is in the traditional model, since the state must secure the defendant's assent before it can impose punishment.
The defendant has the opportunity to bargain with the prosecution in a less technical, legalized setting, to negotiate
the terms of his assent, and thus to become a co-decision maker in the sentence determination. Direct participation
of this sort not only promotes individual dignity,'' but also has an instrumental value. Because the defendant may
feel normally obliged to honor the compromise that he has struck -that is, to respect the product of the process in
which he has participated -he is more likely to feel reconciled to his punishment." Finally, by making the bargaining
process appear less arbitrary, the defendant's participation serves the broader function of promoting the political
legitimacy of the criminal justice system.
WNDI 2007
106761230 3/7/16
47
Cards
-Plea bargain used to minimize uncertainty of sentencing
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
Just as prosecutors use plea bargaining to diminish the unpredictability and inaccuracy of trial, so defendants use
plea bargaining to minimize the uncertainty and rigor of sentencing." By pleading guilty in return for a plea
concession, the defendant can eliminate the risk of a heavier sentence following conviction at trial." This practice
has the process value of allowing the defendant to exert some control over the sentencing process. It has the
substantive value of ameliorating sentencing disparities by reducing the possible range of punishment.
- Trial and sentencing has more inconsistency then plea bargaining
Harvard Law Review, Vol. 90, No. 3. (Jan., 1977), pp. 564-595.
In addition to producing occasionally inaccurate results, the traditional model suffers from unpredictability, both at
trial and during sentencing. Due to a variety of factors -limited pretrial discovery,~indeterminate questions of
credibility, and the uncertainties of jury decisions -neither the prosecution nor the defense can be confident of the
outcome at trial. This problem is exacerbated at sentencing. Modern penological theory generally favors the
individualization of punishment to fit the circumstances of the case and the rehabilitative needs of the particular
offender. accordingly, most criminal statutes grant the judge a wide and largely uncontrolled latitude of sentencing
discretion." There are no uniform, determinate tests of rehabilitative potential."" moreover, judges are not required
to articulate reasons to support their sentence decisions14' and sentences falling within the statutory range normally
are not subject to appellate review." As a result, judicial discretion in sentencing has led to broad and somewhat
arbitrary variations in punishnent. The uncertainty of this process creates an unstable environment from the
perspectives of both the prosecution and the defense. In addition, the seemingly random imposition of the criminal
sanction undermines the predictability of punishment and the deterrence dependent on such predictability who see
defendants who are more severely punished become cynical, question the legitimacy of the sanction, and thus are
less receptive to rehabilitative ~or~ those who receive inordinately lenient sentences, the criminal justice system
loses credibility and is less likely to deter them from future offenses."' Both situations impair the effectiveness and
moral legitimacy of the criminal sanction.
- Less guilty pleas without bargaining
Dominick R. Vetri University of Pennsylvania Law Review, Vol. 112, No. 6. (Apr., 1964), pp. 865-908.
Prohibition of plea bargaining might lead to a substantial increase in the number of trials required for the disposition
of criminal actions. Although some judges would continue to impose more lenient sentences on guilty-pleading
defendants than on those found guilty after trial, the absence of plea bargaining should cause a decrease in the
number of guilty pleas since plea bargaining plus judicial leniency probably results in more pleas than leniency
alone. An increase in criminal trials would severely tax an already overburdened system. More trials would require
more state and federal employees-judicial, prosecutorial, and administrative. Additional courtroom facilities and
prosecution offices would be essential, and administrative costs would grow proportionately larger. The need for
more man-hours of defense counsel time to prepare the criminal cases for trial would pose another serious problem.
Attorneys called upon to contribute their time and talent to an ever increasing criminal trial docket might be unable
to spend necessary time in diverse areas of their practice in which they serve other valuable societal interests.
-Studies on plea bargaining harms are inconsistent
Malcolm M. Feeley Law & Society Review > Vol. 13, No. 2, Special Issue on Plea Bargaining (Winter, 1979), pp.
199-209
Plea bargaining is finally coming to be recognized for the important institution it is. There is a rapidly growing body
of research that describes its variations, reports on its impact, and discusses its implications. Despite these advances,
however, much of this literature is fragmented, anchored in separate disciplines, and often lacking in broad context
and historical perspective. And although much of the empirical research on plea bargaining has a distinct reform
orientation or offers important implications for reform, this is often implicit or presented in a way that is neither
convincing nor useful to practitioners.
-No instrument to weigh harms of plea bargain
Malcolm M. Feeley Law & Society Review > Vol. 13, No. 2, Special Issue on Plea Bargaining (Winter, 1979), pp.
199-209
Unfortunately, we cannot answer these questions satisfactorily. The process of adjudication is an elaborate device
for ascertaining truth and there is no instrument by which its accuracy can readily be measured. The obvious
method-a controlled experiment-is constitutionally and morally repugnant under the circumstances.
WNDI 2007
106761230 3/7/16
48
Cards
-tailored punishments are more effective
Douglas A. Smith The Journal of Criminal Law and Criminology (1973-), Vol. 77, No. 3. (Autumn, 1986), pp. 949968.
Not all views of plea bargaining are unfavorable, however. In support of negotiated pleas, some scholars argue that
statutory penalties are often too harsh, and that tailoring punishment through charge and sentence "adjustments"
makes the criminal justice system more responsive to the exigencies of individual cases. Plea bargaining is also
considered an efficient method of allocating justice system resources. Prosecutors seek to maximize the deterrent or
incapacitative value of their available resources, while defendants seek to minimize their individual costs of criminal
activity.
-Plea bargaining is inevitable
Stephen J. Schulhofer Law & Social Inquiry, Vol. 19, No. 1. (Winter, 1994), pp. 135-144.
Defenders of plea bargaining argue that settlement is not undesirable in principle some even suggest that settlement
is more desirable than the process of "mandatory rounding that produces an all-or-nothing result at trial.3 Defenders
of plea bargaining also argue that, desirable or not, bargaining is inevitable, because courts cannot conceivably cope
with the volume of cases that would have to be tried and because criminal justice professionals will cooperate in
settling cases, even if adequate resources for trials are made available.
-Plea bargaining is no less accurate then a court procedure
Stephen J. Schulhofer Law & Social Inquiry, Vol. 19, No. 1. (Winter, 1994), pp. 135-144.
Defenders of plea bargaining argue that a negotiated settlement is not inherently less just or less accurate than the
outcome of a fully litigated trial. So long as the parties are represented by competent, dedicated counsel and have
equal access to all available information, negotiated settlements can be expected to mirror the results that a trial
would produce.
-Guarantees a guilty verdict
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
Moreover, and perhaps most important to many prosecutors, a guilty plea virtually guarantees that the state will
obtain a conviction. There are several reasons why many guilty defendants would be acquitted at trial: gaps in the
evidence; unavailability of witnesses; poor preparation; procedural errors; jury biases. If prosecutors dismissed
charges whenever a conviction was not relatively certain, many guilty defendants would never be punished at all.
- Plea bargain doesn’t undermine right to trial determination
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
Current case authority indicates that pleas induced from defendants who fully understand the criminal charges,
possible penalties, and actual value of the state commitments, are voluntary in the requisite constitutional sense. It is
reasonable to conclude that plea bargain benefits constitute fair inducement and do not undermine the defendant's
right to a trial determination
- Plea bargaining increases efficiency
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
Plea bargaining serves to increase the eficiency of criminal law administration. By promising various benefits the
state induces criminal defendants to plead guilty, and thus avoids the time and expense of conducting a trial. The
greater the success in inducing guilty pleas, the greater the savings in state resources. While some defendants may
plead guilty in reliance on the prosecutor's word, a predictably enforceable promise would provide defendants with a
much stronger inducement to enter into bargains. Thus, if efficiency were the sole consideration, consistent
enforcement of state plea bargain obligations would be desirable.
- Prosecutor acts in accordance to social protection
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
It is universally assumed that plea bargaining will be administered in accordance with the objective of social
protection. The prosecutor's function is to administer selectively" the state's criminal laws in order to deter socially
dangerous conduct, to rehabilitate individuals where possible, and to remove incorrigibles from society In many
instances the prosecutor may believe that a plea bargain adequately deals with an offender, and that the expenditure
of resources necessary for a trial conviction would be more productive elsewhere
WNDI 2007
106761230 3/7/16
49
Cards
-Officials will exercise great care in plea bargain negotiations
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
Inevitably some plea bargain commitments will prove unwise, and in these situations a rule of enforcement will
conflict with the objective of social protection. The prosecutor normally will not withdraw unless he believes that
the arrangement prematurely returns a dangerous person to society. Perhaps the defendant is a more hardened
criminal than originally thought," or new evidence reveals the crime as a more depraved act than it at first appeared.
Rendering plea bargains unenforceable, however, is not the only way of meeting this problem. The advantages of
enforceable plea bargaining would be preserved under a less drastic approach, which would call for greater efforts
on the part of state officials empowered to enter into plea bargains to avoid saddling the state with hasty, illconsidered, or accidental commitments. Knowledge that their plea bargains are enforceable will itself prompt
responsible officials to exercise great care in making them. The state is under no compulsion to plea bargain and
need never irrevocably commit itself without careful investigation and consideration
-Courts can protect against convicting innocent
Fred B. Miller Stanford Law Review, Vol. 17, No. 2. (Jan., 1965), pp. 316-322.
It has been suggested that courts can effectively guard against the inducement of guilty pleas from innocent
defendants by accepting bargain-induced pleas only after determining from a summary of the prosecution's evidence
that there was substantial likelihood that the prosecutor could sustain his case
-Plea bargain preempts duty of judge
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Moreover, as the product of a plea bargain, the defendant's guilty plea also embodies an assessment of his
culpability, the moral gravity of his conduct, his danger to society and the punishment which the social and
individual dimensions of his case require. The plea bargain, therefore, not only preempts the duty of the judge to
adjudicate the defendant's guilt or innocence in concert with the jury; it also preempts the duty of the judge to
sentence the convicted defendant.
--Plea bargaining achieves the utmost justice and values of law
POLITICS AND PLEA BARGAINING: VICTIMS' RIGHTS IN CALIFORNIA by Candace McCoy. Philadelphia:
University of Pennsylvania Press April 1994
http://72.14.253.104/search?q=cache:7x41SC1W078J:www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/mccoy.htm+
plea+bargaining+good&hl=en&ct=clnk&cd=1&gl=us
McCoy begins the book with a long discussion of the utility of plea bargaining. Recognizing the bad image that plea
bargaining has among the public, she argues that plea bargaining is actually very beneficial. "Good" plea bargaining
is plea bargaining which is thoughtfully and carefully done, which considers and weighs the evidence and the crime,
and which then proceeds to set the appropriate charge and sentence. In doing this, "good" plea bargaining can
"achieve justice for both the litigants and the public." McCoy continues, "Because cases are negotiated with regard
to legal rules and lawyers' predictions of what will probably happen at trial, negotiated settlements can also reflect
the values and standards embodied in the substantive law" (p. xiii)
-Plea Bargaining allows for the most just case outcomes
Frontline WGBH Educational Foundation June 17, 2004
http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/barket.html
I think there's a lot good about it. I think plea bargaining is an invaluable part of our system. It tempers justice with
mercy, if you will. There are times when somebody is guilty -- a petty larceny, for example. You go into a store and
you shoplift. Let's say you steal something that's $1,010 in New York, which makes you guilty of a felony. You lose
your right to vote; you could go to jail for four years; you can't get a job; you have trouble becoming an attorney or
getting other professional licenses.
Suppose you're someone who, for whatever reason that day -- you were with friends, they were goading you on,
maybe you're doing it as a stunt. Whatever you're doing, it was a completely stupid and aberrational act on your
behalf. Prosecutor looks at that and says, "You know what? We don't think a felony is the just result to ruining the
rest of your life with it. We think that, in this particular case, a fair result is we'll reduce it to a misdemeanor, or
maybe even to a lesser offense than a misdemeanor, just a plain offense. You'll pay a small fine, you'll do some
probation, and you'll go on with your life." If you want to get a license you can. If you want to vote, you can. You're
not going to go to jail, and that's a fair and just result. That wouldn't be possible if it weren't for plea bargaining.
WNDI 2007
106761230 3/7/16
50
Cards
-Plea Bargaining upholds American values and keeps the justice system from folding
Frontline WGBH Educational Foundation June 17, 2004
http://www.pbs.org/wgbh/pages/frontline/shows/plea/faqs/
Pleading guilty instead of going to trial reduces uncertainty as to the outcome of a trial; in trying a case before a
judge or before a jury of 12 people, the defendant cannot predict what ultimately will happen.
Plea bargains are also perceived as offering the accused a freedom of choice. And, from the state's point of view, the
main benefit of the plea bargain is that it saves time and money. Almost everyone acknowledges that the system
would collapse if every case that was filed were to be set for trial; there is not enough money to try every case.
-Plea Bargaining is essential in the flow of cases through the justice system
" The Oxford Companion to the Supreme Court of the United States.” Oxford University Press, 1992, 2005.
Answers.com 07 Jul. 2007. http://www.answers.com/topic/plea-bargain
Although the frequency of plea bargains in rural areas belies its origin in backlogged courtrooms, today's criminal
justice system would certainly collapse without the rapid disposition of most cases. Trials are slow, cumbersome,
and long. Prosecutors and defense counsel would require much more time to prepare their cases. Scheduling
witnesses would become guesswork. The time between arrest and trial would lengthen greatly. Conviction rates
would fall. Court‐appointed attorneys would refuse to serve because fee schedules would be inadequate to
compensate them for their time. -Plea Bargaining is a reasonable platform for case negotiations
"plea-bargain." Encyclopedia of American History. Answers Corporation, 2006. Answers.com 07 Jul. 2007.
http://www.answers.com/topic/plea-bargain
The U.S. Supreme Court has recognized that plea bargaining is an important component of our judicial system and
that it is legitimate for prosecutors to use their power to persuade defendants to plead guilty. Plea bargaining is
constitutional so long as prosecutors perform all the terms of the agreement and do not threaten defendants with
charges unsupported by probable cause.
-Plea bargaining allows for more evidence to be considered then trials
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
During bargaining the parties can consider all the evidence that will come in at trial, and then some. The persons
doing the considering are knowledgeable; prosecutors are more likely than jurors to discount eyewitness accounts,
and prosecutors know from experience which details are most likely to separate guilt from innocence. The full
panoply of information plus sophisticated actors are the standard ingredients of adroit decision-making
-Prosecutors can view evidence more accurately then jurors with plea bargain
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Prosecutors can verify this information with at least as much accuracy as jurors. Probably more-not only because
prosecutors are more sophisticated than the average juror, but also because defense counsel may come up with
information that will not be produced in court even if admissible. Some witnesses are unwilling to testify, fearing ill
effects for their reputation or safety. Proffers of information out of court under promise of confidentiality are
common. Defense counsel may play a valuable role as intermediary if a supplier of information fears retaliation.
Counsel may agree to keep the name of the supplier, or identifying tidbits, confidential. Here the reputation of
counsel for honest dealing plays a vital role.
-Better to have option of plea bargain
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Black markets are better than no markets. Plea bargains are preferable to mandatory litigation not because the
analogy to contract is overpowering, but because compromise is better than conflict. Settlements of civil cases make
both sides better off; settlements of criminal cases do so too. Defendants have many procedural and substantive
rights. By pleading guilty, they sell these rights to the prosecutor, receiving concessions they esteem more highly
than the rights surrendered. Rights that may be sold are more valuable than rights that must be consumed, just as
money (which may be used to buy housing, clothing, or food) is more valuable to a poor person than an opportunity
to live in public housing.
WNDI 2007
106761230 3/7/16
51
Cards
-Plea bargain gives prosecutors more time
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
In purchasing procedural entitlements with lower sentences, prosecutors buy that most valuable commodity, time.
With time they can prosecute more criminals. When eight percent of defendants plead guilty, a given prosecutorial
staff obtains five times the number of convictions it could achieve if all went to trial. Even so, prosecutors must
throw back the small fish. The ratio of prosecutions (and convictions) to crimes would be extremely low if
compromises were forbidden. Sentences could not be raised high enough to maintain deterrence, especially not
when both economics and principles of desert call for proportionality between crime and punishment.
-Plea bargaining valuable to system
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Plea bargaining is easier to justify today than ever before. Despite my disparaging reference, the federal sentencing
guidelines serve a valuable function by establishing benchmark sentences, derived from normal judicial practices in
the years before 1987. A "price" so established, known to any defendant who elects trial, squelches one of the
perennial attacks on plea bargaining: that the bargain sentence is the norm, and the higher sentence imposed after
trial a penalty heaped on persons who dare to exercise their constitutional right
-Plea bargaining allows for equality
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Curtailing the discount for pleading guilty has been justified in the name of equality. Yet the greatest disparity in
sentencing is between those convicted at trial and those not prosecuted. A reduction in the number of convictions
attributable to a decline in the number of pleas would dramatically increase the effective disparity in the treatment of
persons suspected of crime, the opposite of the effect the guidelines' authors sought to achieve. As it turns out,
however, bargaining has continued in other ways-for example, by reduction in charges, which takes the matter out of
the hands of judges, or by awarding of additional reductions for assistance to the prosecutor. The percentage of
guilty pleas in federal criminal cases accordingly has been stable
-Plea bargain allows for compromises
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Plea bargains are compromises. Autonomy and efficiency support them. "Imperfections" in bargaining reflect the
imperfections of an anticipated trial. To improve plea bargaining, improve the process for deciding cases on the
merits. When we deem that process adequate, there will be no reason to prevent the person most affected by the
criminal process from improving his situation through compromise.
-Plea bargaining has triumphed in system
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086.
There is no glory in plea bargaining. In place of a noble clash for truth, plea bargaining gives us a skulking truce.
Opposing lawyers shrink frombattle, and the jury's empty box signals the system's disappointment. But though its
victory merits no fanfare, plea bargaining has triumphed. Bloodlessly and clandestinely, it has swept across the
penal landscape and driven our vanquished jury into small pockets of resistance. Plea bargaining may be, as some
chroniclers claim, the invading barbarian. But it has won all the same.
-Plea bargain avoids risks
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086.
Explaining the source of prosecutorial power to plea bargain is the hard part-it is easy to see why prosecutors wanted
to plea bargain. Prosecutors of the nineteenth century, like prosecutors today, plea bargained to ease their crushing
workloads, made heavier in the nineteenth century both by their part-time status and utter lack of staff and by a
caseload explosion perhaps set off by newly founded police forces and massive immigration. And of course they
plea bargained to avoid the risk that wanton juries would spurn their painstakingly assembled cases. Given such
clear incentives, the task of explaining the rise of prosecutorial plea bargaining in liquor and capital cases should
have been complete at the end of Part I-for as soon as prosecutors had the power to plea bargain, they surely would
have used it
WNDI 2007
106761230 3/7/16
52
Cards
-Institution cannot survive without plea bargaining
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086.
Plea bargaining's role in shaping other procedural institutions appears more subtly in the historical record. But the
unmistakable correlation between those procedural changes that have survived and thrived and those that aided plea
bargaining's cause compels a conclusion that plea bargaining has so fast a grip on our institutions of justice that
antagonistic institutions cannot survive
-Whole system benefits from plea bargaining
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086.
All three of the courtroom's major actors prosecutor, defendant, and judge-had found reasons to favor the plea
bargaining system. For prosecutor and judge, who together held most of the power that mattered, the spread of plea
bargaining did not merely deliver marvelously efficient relief from a suffocating workload. It also spared the
prosecutor the risk of loss and the judge the risk of reversal, and thereby protected the professional reputations of
each. In fact, by erasing the possibility of either factual or legal error in the proceedings, plea bargains protected the
reputation and hence the legitimacy of the system as a whole.
-Versatile too, plea bargain gave systemic interest to institutions
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086.
I will move on in Part VII to explore the power tha tplea bargaining as an institution has amassed by serving the
interests of power so well. The power of the various actors who stood to gain from plea bargaining became, in a
sense, plea bargaining's power. This collective, systemic interest in plea bargaining encouraged the rise of those
institutions of criminal procedure that helped plea bargaining and hindered those that hurt it. In the nineteenth
century, plea bargaining fostered probation's rise and thereby created a hugely versatile plea-bargaining tool.
-Court overworked and plea bargain helps
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
The pressure to plea bargain was therefore part and parcel of part-time prosecuting: No matter how many criminal
cases a district attorney had, he could make more money by handling them with dispatch Still, the incentive to get
through one's cases grew particularly intense in the 1840s as caseloads leapt higher. In 1843, by the same stroke
with which the legislature wiped out the office of the attorney general, it salted prosecutorial wounds with a thirtypercent pay cut.13' The result was a storm of protest from prosecutors and their supporters, who deluged the
legislature with accounts of their overwork
-Plea bargain politically popular
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
In their study of the rise of guilty pleas in New York, Mike McConville and Chester Mirsky likewise point to the
political popularity of plea bargaining as a factor in explaining its growth. They write that plea bargaining "avoided
the discontent that imprisonment for convictions of the full indictment would engender among the immigrant
underclass, who, under the movement for universal suffrage, had become part of the newly formed electorate.
-Power given to courts
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
By the last quarter of the nineteenth century, plea bargaining had become a valued tool not only of prosecutors, but
of judges as well. Serving the interests of all those with real power, plea bargaining became a dominant power by
winning their protection. Prosecutors and judges protected plea bargaining by nurturing other procedural forms, such
as probation, that helped plea bargaining thrive.
-Judge given power in checking plea bargains
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
In a civil case, in contrast, the judge's power to promise a palatable outcome to a party who agreed to settle extended
only so far as his power to persuade the opposing party to go along. Likewise, his power to threaten an unhappy
outcome to a party who risked trial and lost reached little further than his capacity to influence the jury to deliver an
unfavorable monetary award. It is true that the doctrine of remittitur gave judges the power to order a new trial
unless a victorious plaintiff agreed to give up whatever portion of a jury's award the judge thought excessive
WNDI 2007
106761230 3/7/16
53
Cards
-Plea bargaining fulfills the principals of punishment
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
Now, though, it is important to see what sustenance plea bargaining drew from the principles of the indeterminate
sentence. For even as the true indeterminate sentence fell to history's dust the concept survived in corrupted forms,
and its theoretical underpinnings proved more lasting than the institution itself. Those underpinnings were quite
simple: First, punishment should look to the future and not the past. That is, the critical concern in arriving at a just
sentence was not what the defendant had done, but when it would be safe again to release him upon the community.
The second underpinning followed from the first: Because the judge, even after trial, knew little more about the
defendant's capacity for reform than what one could learn from a study of his past behavior, the judge was distinctly
unqualified to pass a fixed sentence
-Plea bargain has staying power
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
Plea bargaining entered the twentieth century with all the staying power that comes from serving the interests of
power-holders. Its course throughout the century proved to be one of consolidation of power, as institutions that
might have threatened plea bargaining's dominance fell by the wayside and as others that fed plea bargaining's
preeminence took hold. But before I proceed in Part VII to trace the outlines of plea bargaining's twentieth-century
progress, it is important to reinforce the lessons of its nineteenth-century rise. For our work in Middlesex County
will be of little use unless we can be sure that the principles of power that steered the course of plea bargaining's rise
there operated in other times and places.
-Plea bargaining plays to those in power as well
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
But the efficiency of plea bargaining is not the only benefit it extends to power-holders. It is obvious that
prosecutors like plea bargaining because it secures victory in the case. What is less obvious is that plea bargaining
confers almost the same advantage on judges. True, most judges have no personal or professional stake in seeing the
defendant convicted, but a plea bargain still means that the judge "wins" to the extent that it guards against the
reputational blow of a reversal: Without a trial, after all, the judge cannot commit a trial error
- Plea bargain saved system from overload
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
For prosecutors, more appeals inevitably meant both more time-consuming prosecutions and more reversals on
appeal, and so the usefulness of plea bargaining both to secure efficient dispositions and to assure victory in the case
grew larger. A s trial judges saw the greater potential for reversals and the reputational damage that they brought,
personal interests bound them ever tighter to plea bargaining's cause. And as appellate judges suffered under the
eight of their growing dockets, they too began to know the efficient promise of plea bargaining. It is little wonder,
perhaps, that the United States Supreme Court's definitive affirmation of the legality of plea bargaining
-Plea bargain takes power away from jury
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
The usefulness of this division of labor between plea bargaining and jury trial, in which the bargaining process
handles the easy cases and the jury the hard ones, becomes clear when we reflect on the consequences of the jury's
returning a "wrong" verdict in a "clear" case. The system's legitimacy suffers its greatest strain when the public feels
sure that the jury has erred. But because defendants who face overwhelming evidence of guilt typically bargain for
the best deal they can get, the jury rarely faces a clear case and rarely risks being clearly wrong
-Plea bargain attempts to erase all error from criminal justice
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
Plea bargaining and jury trial, then, have joined in a task of erasing all apparent error from the criminal justice
system. Little clear error can escape from the black box of the jury's deliberation room as long as only controversial
cases enter. And plea bargaining by its very nature hides both factual and legal error: By admitting guilt, the
defendant eliminates any formal doubt of guilt. By renouncing trial and all right to complain of pretrial error, the
defendant normally bars any court from declaring error on appeal. We should not wonder at the staying power of
plea bargaining. Not only does it ease the workloads and protect the reputations of the two most powerful courtroom
actors-judge and prosecutor-it also protects the reputation of the system as a whole.
WNDI 2007
106761230 3/7/16
54
Cards
-Current US society can afford switch from plea bargaining
Stephen J. Schulhofer Law & Social Inquiry, Vol. 19, No. 1. (Winter, 1994), pp. 135-144.
In an era of rising crime and youth violence, skyrocketing homicide rates in the inner cities, strapped municipal
budgets and overwhelmed courts, what could be more untimely than a call to reduce plea bargaining and devote
more resources to holding jury trials? Yet the issue of bargain justice, like the proverbial bad penny, stubbornly
refuses to go away. The concern persists, not only for a lonely band of academics but also for many ordinary
citizens, that plea bargaining compromises our aspirations to justice at the same time that it undermines the effective
punishment of serious offenders
-In a trial only system, prosecutors are less careful
Robert E. Scott; William J. Stuntz The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992),
pp. 1909-1968.
Unfortunately, abolition would likely only worsen innocent defendants' plight. In order to accommodate the
dramatic increase in trials, the trial process itself would have to be truncated, as Stephen Schulhofer's famous
discussion of the Philadelphia process shows. The mini-trials that took the place of bargainingin Philadelphia were
brief affairs, most lasting no more than an hour; the pretrial preparation on both sides was Altering the trial process
in this way necessarily increases the error rate (unless our current trial system is nonsensical), meaning that it raises
the rate at which innocent defendants are convicted. That, in turn, alters prosecutors' incentives when making
decisions about which cases to take to trial. Indeed, it may alter police incentives when making arrests. Police
officers and prosecutors alike can afford to be less careful in screening their cases if the trial "backstop" becomes
more casual.
-Mistakes unlikely but Supreme Court has placed safeguards
Robert E. Scott; William J. Stuntz The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992),
pp. 1909-1968.
In practice, only truly atrocious lawyering leads to a judicial finding of ineffective assistance in the guilty plea
setting.163 This is unsurprising, since the governing Supreme Court decision states that relief is appropriate not
where the defendant might have struck a better deal, but only where he would not have pled guilty at all. Because
most attorney error affects the price of the plea rather than its existence, most attorney error does not amount to
ineffective assistance. In short, aside from occasional instances of incredible incompetence, it is not so much defense
attorney error as government advantage-taking that determines whether a defendant can rescind his plea based on
mistake
-Plea bargaining protects against inaccuracy of trials
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
In fact, plea bargaining may do an even better job of protecting the system from the perception of wrongful verdicts
than at first appears. Harry Kalven and Hans Zeisel concluded in their monumental study, The American Jury,that
plea bargaining tends to remove from the jury system those cases in which the defendant faces the clearest evidence
of guilt: If all controversies of criminal law were placed on a continuum from the weakest to the strongest in terms
of the prosecution's case, the guilty plea. . .would be likely to withdraw cases from the strong side of the continuum,
leaving the weaker cases for jury trial. The upshot is that, out of the great universe of criminal controversies, those
surviving to jury trial. . . are likely to be the more controversial cases where, in the nature of things, the chances
of disagreement are increased.723 As we might expect, when defendants regard their odds of conviction to be
all but certain, they are more likely to seek a deal to cut their losses. If they sense freedom within their grasp, they
are more likely to insist on trial.724 Hence "the higher the chances for acquittal, the less likely the guilty plea, and
vice versa.
-Plea bargain used for laws that might not be enforced
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
By depriving judges of almost all sentencing discretion in liquor-law cases, the legislature had assured that
prosecutors could-by over-charging, selectively no1 prossing, and manipulating the amount of costs-dictate the
defendant's sentence. That is, the legislature had empowered prosecutors to engage in charge bargaining without fear
that the court's noncooperation might unsettle the terms of the bargain
WNDI 2007
106761230 3/7/16
55
Cards
-Plea bargaining is more effective then courts
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
These steps, taken together, make plea bargaining at least as effective as trial at separating the guilty from the
innocent. To the extent there is a difference, negotiation between sophisticated persons unencumbered by the rules
of evidence is superior
Contract theory
-Plea bargaining is no different from a contractual obligation
Robert E. Scott; William J. Stuntz The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992),
pp. 1909-1968.
One place to look for an answer is in the law and literature of plea bargaining as contract. Plea bargains are, as the
name suggests, bargains; it seems natural to argue that they should be regulated and evaluated accordingly. But
while that argument is common, there is little agreement on where it leads. 7Svo of the harshest and most influential
critics of plea bargaining, Albert Alschuler and Stephen Schulhofer, maintain that contract theory supports
prohibiting any bargained-for allocation of criminal punishment. Th e courts, on the other hand, have proceeded to
construct a body of contract-based law to regulate the plea bargaining process, taking for granted the efficiency and
decency of the process being regulated.
-Contract theory supports plea bargaining
Robert E. Scott; William J. Stuntz The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992),
pp. 1909-1968.
Properly understood, classical contract theory supports the freedom to bargain over criminal punishment. At the
same time, there are fundamental structural impediments in the plea bargaining context that may underlie the
widespread antipathy to the practice. These barriers to efficient bargaining are not, however, grounds for abolition,
but instead suggest more focused reforms of current practices.
Public perception
-Fairness is only a perception of the individual
Faye Taxman, James Byrne, April Pattavina, PhD’s, JOURNAL OF HEALTH CARE FOR THE POOR AND
UNDERSERVED, 2005, pg. 59.
Unfairness may be in the eye of the beholder. Conditions of the situation or individual characteristics may
predispose a person to perceive unfairness, just as controllable actions or decisions contribute to its perception.
Investigating situations that affect perceptions through a series involving college students, Piquero and colleagues
examined the impact of an individual’s level of self-control and emotions (e.g., anger) as factors in the perception of
fairness (in this case a sanction for a violation of a rule).13 The study had three main findings: that students with low
self-control tend to judge sanctions unfair, that anger contributes to sanctions being judged as unfair, and that
sanctions perceived as unfair increase the likelihood that the individual will become angry. These emotional triggers
alter the assessment of the legitimacy of decisions by legal authorities.
-Perception of the justice system effects likeliness to conform
Faye Taxman, James Byrne, April Pattavina, PhD’s, JOURNAL OF HEALTH CARE FOR THE POOR AND
UNDERSERVED, 2005, pg. 59.
Unlike other reviews of the literature, which focus on racial disparities, the purpose here is to illustrate how the
policies and procedures of the criminal justice system may affect the perception of (il)legitimacy of the criminal
justice system. Together, these policies and procedures may serve to undermine the individual’s conformity to rules
in society and an individual’s belief that the criminal justice system can provide the treatments and services
necessary to equip him/her to contribute to society.
-Legal costs force defendants to opt for plea bargains
Faye Taxman, James Byrne, April Pattavina, PhD’s, JOURNAL OF HEALTH CARE FOR THE POOR AND
UNDERSERVED, 2005, pg. 59.
A defendant who does not qualify for appointed counsel must pay the cost of representation. This places pressure on
offenders to secure representation by attorneys who specialize in the rapid handling of cases for flat fees or to plead
guilty and thereby waive the option of going to trial in order to avoid incurring significant legal costs,57 and thus
affects the likelihood of his/her being convicted and receiving an incarceration sentence.
WNDI 2007
106761230 3/7/16
56
Cards
-Defense counsel appointment effects defendant’s rights & access to plea bargains
Faye Taxman, James Byrne, April Pattavina, PhD’s, JOURNAL OF HEALTH CARE FOR THE POOR AND
UNDERSERVED, 2005, pg. 59.
The manner in which the state funds or provides defense counsel to the indigent affects the ability of that counsel to
assume a truly independent role. The point in the process at which they are appointed also affects the defense
attorney’s independence. If the defendant is assigned counsel at the beginning of the trial phase, legal rights may be
undermined during earlier criminal justice phases (such as bail hearings, charging decisions, and plea bargaining). In
the all-too-swift world of criminal justice processing (where nearly 95% of the cases are disposed through plea
bargaining instead of trial),57 the independence of the legal defense counsel and the point at which defendants are
provided services affect the ability of the legal counsel to be effective advocates in the courtroom.
-Desire to use plea bargain has only grown over time
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
The desire to see cases plead out rather than go to trial, which had infected public prosecutors almost from their
inception, now had spread to judges, whose power to dictate sentences reached much further. Plea bargaining
therefore could break loose from the narrow bounds to which prosecutorial charge bargaining once had confined it.
Meanwhile, the supposed reform of permitting defendants to testify at trial had left those defendants who had
criminal histories with little hope of winning at trial and little choice other than to seek the best plea deal that they
could get. With all of the system's powerholders now sharing a common interest in plea bargaining, trials grew
exceedingly rare. The rate of guilty pleas, which had approached ninety percent in 1900, showed no sign of falling
off by 1910. As we know from the history books, the rest of the century only advanced plea bargaining's dominance.
-Avoids uncertainty and benefits public
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
At least three influential participants in the criminal justice system prosecutor, trial judge, and appellate judgetherefore see plea bargaining as a means toward efficient management of overgrown workloads. At least
two-prosecutor and trial judge-see it as a means to guard their reputations from the scent of fecklessness or
incompetence. And criminal defendants, lest we forget them, may see plea bargaining as a means to avoid
uncertainty and to elude the most severe allowable sentence. But beyond these advantages that plea bargaining
confers on individual participants in the justice system, it confers another on the system as a whole: To the extent
that a plea bargain delivers a verdict that onlookers acknowledge to be truthful
-Without plea bargaining innocent people are more likely convicted
Robert E. Scott; William J. Stuntz The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992),
pp. 1909-1968.
In short, prohibiting plea bargaining would likely raise the proportion of innocents who are convicted of crimes. The
problem of defendants' inability to use their private information in bargaining would disappear since bargaining
would disappear. But if the trial process itself led to a substantially higher rate of conviction of innocent defendants,
the ex ante position of those defendants would not improve.
-In capitalist system, plea bargain has same economic mindset
Kenneth Kipnis Ethics, Vol. 86, No. 2. (Jan., 1976), pp. 93-106
The plea bargain in the economy of criminal justice has many of the important features of the contract in
commercial transactions. In both institutions offers are made and accepted, entitlements are given up and obtained,
and the notion of an exchange, ideally a fair one, is present to both parties. Indeed one detects something of the color
of consumer protection law in a few of the decisions on plea bargaining. In Bailcy v. MacDougal" the court held that
"a guilty plea cannot be accepted unless the defendant understands its consequences." And in Santo Bello v. New
York14 the court secured a defendant's entitlement to a prosecutorial concession when a second prosecutor replaced
the one who had made the promise. Rule 11 of the Federal Rules of Criminal Procedure (effective August 1, 1975)
requires that "if a plea agreement has been reached by the parties which contemplates entry of a plea of guilty or
nolo contendere in the expectation that a specific sentence will be imposed or that other charges before the court will
be dismissed, the court shall require the disclosure of the agreement in open court at the time the plea is offered.
These procedures all have analogues in contract law. Though plea bargains may not be seen as contracts by the
parties, agreements like them are the stuff of contract case law
WNDI 2007
106761230 3/7/16
57
Cards
-Plea bargaining protects public
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
Plea bargaining leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive
impact of enforced idleness during pretrial confinement . . . it protects the public from those accused persons who
are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge
and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately
imprisoned.
-Can offer assistance in catching other criminals
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Although the disclosure and assessment of information about innocence is imperfect, some defendants can identify
their status with high reliability. Guilty persons can provide details that are known only to the guilty. Sometimes
they offer assistance in prosecuting their confederates. After locating those persons willing to cooperate, prosecutors
will either (1) accept plausible claims of innocence from those remaining, or (2) condude that the person is guilty
but recalcitrant and set a plea offer too high to be attractive to an innocent person.
-Innocent people would still be tried without plea bargain
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment (Jun., 1992), pp. 19691978
What disrupts this separation of the guilty from the innocent is not a flaw in the bargaining process but a flaw at
trial. When the innocent bear a significant risk of conviction, the bargaining reflects that anticipated outcome?
Innocent persons are accused not because prosecutors are wicked but because these innocents appear to be guilty.
Prosecutors decline to charge many obviously guilty persons given their shortage of staff in relation to the volume of
crime; even an amoral prosecutor knows that an innocent person is more likely to fight, and more likely to be
acquitted if he fights, which makes charging an innocent person a poor choice when there are so many easy
convictions to be had.
Prosecutor
Public Prosecuting Attorneys Have Incentive and Means to use Plea Bargains when it doesn’t benefit the Prosecutor
George Fisher. Stanford, Calif Plea Bargaining’s Triumph: A History of Plea Bargaining in
America. Stanford, Calif.: Stanford University Press, 2003.
Ever since their American debut in the early republic, public prosecutors Have had strong incentives to create and
sustain a plea bargaining regime. Whatever its faults, no one denies that plea bargaining is an efficient technology
for churning through large criminal caseloads. The Middlesex County prosecutors of the first half of the nineteenth
century were particularly pinched. Part-time public employees, they typically also kept up a private law practice.
Getting through their criminal dockets more quickly freed them up to attend to their more lucrative civil cases. The
county attorney of neighboring Suffolk County described the frustration that came with the office. “[U]nremitted
professional labors, night and day, with no vacation and no assistance, and perpetual confinement daily and all day,
in badly ventilated court-rooms, will break down the best constitution” he said (pp. 43–4). To make matters worse,
Middlesex County’s criminal caseload exploded during the 1840s, from 42 cases in 1839 to 443 a decade later, as
immigration fueled population growth and lawmakers expanded the jurisdiction of the middle-tier courts (p. 40).
Plea bargaining provided quick relief for overtaxed prosecutors. It also eliminated the risk of a jury trial, handing
prosecutors an easy victory that would appear in the public record as a conviction—a wonderful thing for
Massachusetts DAs, whose offices became elective in 1856. As the canny Moley later observed, “The district
attorney’s ‘record,’ as he usually interprets it to the public, rests upon the ratio of convictions to acquittals and
means as much to him as a batting average means to a baseball player” (p. 48).
-Plea bargain eases prosecutors mind
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
Finally-and on the other hand-this technique usually protected prosecutors from judicial whimsy. I argued earlier
that one disincentive to charge bargaining in murder cases was the prosecutor's lack of dexterity in formulating a
precise sentence. It is likely that prosecutors did not happily trade the mandatory death penalty assigned to firstdegree murder for the zero-to-twenty-year prison term assigned to manslaughter without some assurance as to where
along this range the court's sentence would fall. And yet if the defendant refused to plead to the mandatory life
penalty assigned to second-degree murder, there was no other option. A judge's rigid habit of following the parties'
sentencing recommendation should have eased the prosecutor's mind.
WNDI 2007
106761230 3/7/16
58
Cards
Plea bargaining is deal-making
Michael WILLRICH [Department of History, Brandeis University, is the author of
City of Courts: Socializing Justice in Progressive Era Chicago] 2003 Reviews in American History Pg. 430
As an administrative procedure, Moley noted, plea bargaining was well concealed. The scholar had to know where
to look for traces of deal-making in the boilerplate language of docket books and criminal case files—a
methodological challenge for historians ever since. “The very difficulty with which the facts concerning this practice
have been unearthed,” an exhausted Moley wrote, “shows how easy it has been for prosecutors to indulge in this sort
of compromise without exciting public interest” (p. 7). Moley also attempted the first serious historical analysis of
plea bargaining’s rise. In New York, plea bargaining had spread slowly during the first half of the nineteenth century
and became pervasive by 1900. Setting a model for later historians, Moley attributed plea bargaining’s institutional
growth to the mounting pressure of criminal caseloads, which gave prosecutors a strong incentive to deal.
Prosecutors have no say in the sentencing.
Sanford C. Gordon American Journal of Political Science, Vol. 46, No. 2. (Apr., 2002), pp. 334-351
Although residual authority for determining punishment resides in the hands of judges and juries, prosecutors
decide which cases and charges are brought forward and retain a large measure of control over the information those
judges and juries review. In addition to representing the community in criminal trials and appeals, prosecutors also
direct criminal investigations and arrange plea-bargains with criminal defendants.
-Plea bargain responsible for public defenders
George Fisher The Yale Law Journal, Vol. 109, No. 5. (Mar., 2000), pp. 857-1086
And in the twentieth century, plea bargaining played a surprisingly direct role in assisting the creation of public
defenders. In turn, these organizations for defense of the poor assured that in a majority of criminal cases, the
defense lawyer would share the prosecutor's and judge's interests in maximizing systemic efficiency-and hence in
plea bargaining. These examples of plea bargaining's influence over other institutions of criminal procedure are
merely case studies within a larger trend. In fact, it is hard to think of a single enduring development in criminal
procedure in the last 150 years that has not aided plea bargaining's cause.
-Deterrence is the most important thing to prosecutors
Frank H. Easterbrook The Yale Law Journal, Vol. 101, No. 8, Symposium: Punishment. (Jun., 1992), pp. 19691978.
Even an amoral prosecutor knows that deterring crime promotes reelection or reappointment. Deterrence increases
with the difference between what happens to you if you violate the law and what happens to those who don't. Every
conviction of an innocent person undermines deterrence by reducing the marginal punishment of the guilty, and thus
injures the prosecutor. It is no surprise that judges do not perceive a problem of innocent persons being prosecuted,
and no surprise, too, that many lawyers believe that all of their clients are guilty-although not, perhaps, of the crime
the prosecutor selected.
-Without plea bargaining vast amounts of funds would be needed
Thomas R. McCoy; Michael J. Mirra Stanford Law Review, Vol. 32, No. 5. (May, 1980), pp. 887-941.
Ninety percent of cases are resolved by guilty plea. Thus, the resources of the criminal justice system would have to
be doubled if the figure were reduced to 80%or tripled if the figure were reduced to 70%
-Pleas are not coerced
Alan WertheimerPhilosophy and Public Affairs, Vol. 8, No. 3. (Spring, 1979), pp. 203-234
All of these pleas . . . are valid in spite of the State's responsibility for some of the factors motivating the pleas; the
pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence that
he must take the stand or face certain conviction
-Plea bargaining is a product of repentance for crime as well as tactical
Mike McConville Journal of Law and Society, Vol. 25, No. 4. (Dec., 1998), pp. 562-587
Historically, therefore, courts tended to emphasize the importance of repentance, of which the guilty plea might be
one sign, in contrast to ancillary benefits which might flow from a guilty plea. It followed from the principle of
remorse that there would be no basis for reducing a sentence if the guilty plea was purely tactical rather than a
product of repentance, and little basis for significant mitigation where the defendant, by reason of the weight of the
evidence and the circumstances of the case, had no realistic alternative except to plead guilty
WNDI 2007
106761230 3/7/16
59
Cards
-Plea bargaining isn’t going anywhere
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
Few features of our criminal process have been so disfavored and yet so durable as plea bargaining. Despite
misgivings about both its wisdom and its constitutionality, and calls for its abolition,' the practice shows no sign of
vanishing: the guilty plea still accounts for an overwhelming majority of our criminal dispositions
- Plea bargain only avenue to allow for surrender of rights
The Yale Law Journal, Vol. 82, No. 2. (Dec., 1972), pp. 286-312.
The continued prevalence of plea bargaining signifies that the arguments against it have proven unequal to the
administrative rationale in its favor. So long as it remains impossible for our criminal system to permit every
defendant to claim his right to a jury trial, some inducements for the surrender of that right will be necessary. At the
moment, plea bargaining is our only vehicle for granting such inducements. Moreover, absent a dramatic increase in
legal resources or the appearance of some other strategy which compensates for our shortage of those resources, plea
bargaining is likely to endure
Fixes to Plea bargain
-Plea bargain focus on high percentage of cases
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Prosecutorial efforts to induce guilty pleas play a central role in the administration of criminal justice. In most
jurisdictions prosecutors grant special concessions-usually dismissals of certain charges or reduced sentence
recommendations '--to defendants who enter guilty pleas and thus waive their constitutional right to a trial before a
judge or This "plea bargaining" practice disposes of a remarkably high percentage of cases
-allow pleading to be used as high as life in prison
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Despite commentators' arguments in favor of abolishing plea bargaining,4 the Supreme Court recently
acknowledged its validity in Braciy . Uaited States.the defendant in Bvady was charged with kidnapping and faced
a possible maximum penalty of death upon conviction by a jury.6 By pleading guilty he reduced the maximmn
possible sentence to life imprisonment.~ In a subsequent action he sought to invalidate his plea on the grounds that it
was induced both by his fear of the death penalty and by the prosecutor's representations concerning reduction of
sentence and clemency
-Allow faster plea bargain
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
[W]e cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a
substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and
to enter the correctional system in a frame of mind which affords hope for success in rehabilitation over a shorter
period of time than might otherwise be necessary.'
-Need formal guidlines
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Accepting the premise that prosecutorial encouragement of guilty pleas is a necessary feature of our present system
of justice, it is important to formulate guidelines which retain the advantages yet minimize the undesirable
consequences of plea bargaining
-Sentence recommendation by prosecution affective
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Because Pennsylvania judges generally have a great deal of flexibility in sentening, prosecutorial concessions
usually involve sentence recommendations rather than dismissal or reduction of chargesz4 To induce a guilty plea,
the assistant prosecutor may promise to make a specific sentence recommendation or, in some cases, to make no
sentence recommendation or not to oppose probation. The judge is generally not a party to this arrangement. In rare
cases, however, the defendant will refuse to enter a plea unless he receives assurance that the judge will not impose
a sentence exceeding the assistant prosecutor's recommendation. While the assistant prosecutor's sentence
recommendation is not binding, Philadelphia judges generally adhere to it. The concessions offered by Philadelphia
prosecutors, therefore, have the effect of limiting the maximum sentence which the defendant will receive
WNDI 2007
106761230 3/7/16
60
Cards
-Guidelines made as time moves on
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Like most prosecutors, the Philadelphia district attorney has not established any formal rules or procedures
governing plea bargaining.16 He and his top assistants have developed general policies, however, which are
communicated to other assistant prosecutors in office meetings and intra-office memos, and through a general
process of osmosis. For example, absent exceptional circumstances, office policy forbids sentence concessions to
induce pleas in certain "very serious" cases paramount. No systematic attempt is made to designate which cases
belong in this category but, according to District Attorney Arlen Specter, the cases most likely to be considered
"very serious" are those in which the crime indicates that the defendant presents a serious and continuing threat of
violence.18 Thus, sentence concessions are forbidden in cases involving the brutal rape of a stranger or an armed
robbery in which the victim is injured. 011 the other hand, plea bargaining is condoned in dealing with crimes of
passion. The theory is that such crimes are unlikely to be repeated and thus society's interest may be adequately
served by the imposition of a substantially shorter sentence than the defendant 1% would probably receive following
a trial and conviction
-Try to minimize delay
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Philadelphia office policy also opposes granting concessions merely because a case might result in an acquittal.
according to First Assistant District Attorney Richard Sprague, the primary purpose of plea bargaining is to save
time and clear the dockets. 1; the trial prosecutor has a weak case which may be tried without delay, no major
concessions should be offered
-Time-in sentence works for plea
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Several factors enhance the prosecutor's bargaining position when the defendant is in custody. If the prosecutor
believes that the defendant has already been incarcerated for a sufficient period of time and is willing to recommend
a "time-in" sentence, the defendant will invariably agree to plead guilty to obtain immediate freedom. even if the
prosecutor does not agree to a "time-in" sentence, an incarcerated defendant, frightened and demoralized by the
prospect of an indefinite period of confinement, may be willing to enter a plea and accept a fixed period of
imprisonment. Finally, in a "jail room" case, the prosecutor deals almost exclusively with an assistant voluntary
defender. Because the defender will probably work with the prosecutor again and will be interested in maintaining a
good relationship, he may often be highly receptive to guilty plea negotiation
- Only plea when certain judge will go for it
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Plea bargaining practices in New York differ from those in Philadelphia in two important respects. First, as noted
earlier, because more guilty pleas must be entered in New York, the concessions offered to defendants are
concomitantly increased.44 Second, the New York trial judge plays a far more important role in the bargaining
process than does his Philadelphia counterpart. According to Martin Erdman of the New York Legal Aid Society,
most New York defense attorneys will not enter a plea unless they are certain what the judge will do. In some cases
the assistant prosecutor and defense counsel may seek judicial approval of a tentative plea arrangenent. The judge
generally agrees to accept the plea and either to impose the sentence requested 46 or to permit withdrawal of the
plea if he finds a more severe sentence warranted. In other cases New York judges actively participate in
negotiations and often suggest appropriate plea bargains
-Spread out responsibility of plea bargain
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
One major change in the structure of the prosecutor's office would eliminate many of the problems caused by current
plea bargaining practices. Several assistant prosecutors should be given responsibility for negotiating guilty pleas
with defense counsel at the earliest possible stage in the proceeding. In Philadelphia, for example, one assistant
prosecutor could be chosen to negotiate pleas in homicide cases, one to negotiate pleas in other major cases, and two
or three to negotiate pleas in the list room cases. These "executive prosecutors" should be among the most able and
experienced in the office. They would have full responsibility for evaluating the facts of all cases assigned to them,
deciding what sentence recommendations should be made upon conviction following trial, and determining to what
extent a recommendation should be reduced upon the entry of a guilty plea. Their recommendations should be based
solely on criteria relating to the defendant's criminal background, the crime committed. and the strength of the state's
case. Factors such as the assistant prosecutor's relationship with defense counsel and whether the defendant is free
on bail should be completely excluded from consideration.
WNDI 2007
106761230 3/7/16
61
Cards
-Benefits of spread out responsibility
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
In cases appropriate for plea bargaining, the executive prosecutor would contact defense counsel at an early stage in
the proceedings and either reach a plea agreement immediately or arrange a meeting to explore the possibility of an
agreement. In these conversations with defense attorneys, the executive prosecutor should make it clear that he is
offering a bargain as good as, if not better than, any lie will be likely to offer at a later time. So no plea is negotiated,
the executive prosecutor should assign the case to a trial prosecutor with instructions concerning the range of proper
sentence recommendations, the range of concessions to be given upon a forthcoming plea, and the reasons for these
recommendations. The trial prosecutor would have to state persuasive reasons for any departure from the
recommendation
-Improve system with better background
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Implementation of these procedures would produce several improvements over the present system. By devoting
himself exclusively to plea bargaining, the executive prosecutor should develop a rich background of experience
useful in resolving the more difficult questions. He should prove a more efficient and objective plea negotiator
because he will not be engaged in the trial of other cases and because possible conflict between office policies and
his personal goals will he minimized. In addition, placing the authority for plea negotiation in fewer, more
responsible hands would encourage uniform treatment of defendants. Finally, under the proposed procedure plea
discussions would be initiated earlier, thus facilitating quick disposition of cases
-DA must maintain overall control
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
To insure effective plea bargaining, the district attorney must maintain some control over the executive prosecutor's
exercise of discretion. Each office should thus formulate plea bargaining policies and provide executive prosecutors
with fairly detailed guidelines of the criteria to be applied in determining appropriate concessions. While such
guidelines should not attempt to cover every conceivable situation, they should give some indication of bargaining
priorities. Among the questions which should be answered are: What cases should not be compromised? What rules
should be applied when the prosecutor's case is weak? What effect, if any, has a defendant's connection with
organized crime? What criteria should be applied in deciding the sentence concessions a defendant will receive for
turning state's evidence? Since the guidelines would be promulgated only to the executive prosecutors, the district
attorney should be relatively free to answer these questions candidly and in some detail.
-Prosecutors must be given discretion
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
In applying office policies to new situations, the executive prosecutors must, of course, be afforded some discretion.
Also, if an executive prosecutor perceived that a plea bargaining policy established by the district attorney is not
leading to effective utilization of trial resources, he should have some latitude to reinterpret the policy. But, although
the executive prosecutors will often be required to exercise discretion, they should also be required to submit their
work to rather close scrutiny in order to safeguard the district attorney's control over plea bargaining. The executive
prosecutor should file a brief report of each case stating what concessions, if any, were offered, and why. More
detailed reports would be required only when the executive prosecutor confronted a unique plea bargaining situation
or initiated a shift in prosecutorial policy. Such reports should enable the district attorney to determine both the
extent of compliance with the plea bargaining guidelines and the need for modification of the guidelines.
-Minimize potential for innocent convictions
Trial judges must also minimize the possibility that innocent defendants will enter guilty pleas. Although all federal
judges and most state judges must inquire into the "factual basis" of a guilty plea, many consider this requirement
satisfied merely by asking the defendant whether he is in fact guilty of the crime charged. But an affirmative answer
to this question may only be a reaffirmation of the defendant's genuine desire to enter a plea. Rather than engage in
this meaningless ritual, judges should require the defendant to detail the circumstances of his alleged crime. While
this device is not infallible, it should give the judge some insight into the actual guilt or innocence of the defendant.
In addition, the judge should examine all of the evidence against the defendant.l16 If, upon examining this evidence
and hearing the defendant, the judge seriously doubts the defendant's guilt,'l7 he should either refuse to accept the
plea or at least strongly urge the defendant to go to trial.
WNDI 2007
106761230 3/7/16
62
Cards
-Sensitivity for weak state cases
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
In formulating plea bargaining guidelines, the district attorney should accord special attention to the rules to be
applied when the state's case is weak. The rules should reflect a sensitivity to the probable guilt or innocence of the
defendant, and not merely a consideration of relative chances of acquittal or conviction. Four variations of a
hypothetical case will illustrate several of the problems which should be considered. In the hypothetical, defendant
and an accomplice are charged with robbery and burglary after allegedly breaking into a dwelling house, threatening
a babysitter with a gun, and taking a substantial amount of money and valuables.
-Judges role should be limited
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
The proposals offered thus far have been directed at prosecutorial plea bargaining practices. But the judge's role in
plea bargaining must also be examined. To date, the judge's involvement has tended towards one of two undesirable
models : either the trial judge actively participates in the bargaining process, or he blinds himself to the realities of
plea bargaining and engages in the ritual of asking the defendant whether prosecutorial concessions have played a
part in inducing his guilty plea.l13 Although a judge should remove himself from the bargaining process to protect
his role as an impartial arbiter, he should also recognize that many guilty pleas occur as a result of prosecutorial
concessions. When receiving pleas, the judge should impose safeguards which protect defendants without
unreasonably jeopardizing the prosecutor's efficiency in disposing of cases
-Judge shouldn’t be able to go above prosecutors discretion
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Limiting the judge's sentencing discretion in cases involving bargained pleas would promote these dual ends. The
trial judge should be bound either to impose a sentence no greater than that recommended by the prosecutor or to
permit the defendant to withdraw his plea. This requirement would protect defendants by assuring them that the
prosecutor's recommendation sets an absolute ceiling on the sentence which may be imposed if their plea is
accepted; it would promote prosecutorial efficiency because defendants would naturally be more willing to enter
into plea agreements.
-Uniform plea bargain treatment necessary
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Finally, trial judges should endeavor to assure defendants of uniform plea bargaining treatment.To insure that the
prosecutor's policies are being applied uniformly, trial judges, before accepting a plea, should require a fairly
detailed statement of the reasons supporting the sentence concessions.126 If the judge believes that the prosecutor is
dealing less leniently than customary with a particular defendant, he may impose a sentence less severe than the
prosecutor's recomnlendation; if he believes the prosecutor is excessively generous, he may refuse to accept the
plea.
Financial
-Plea bargain protects resources
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
The Court also recognized that plea bargaining is essential to effective utilization of "scarce judicial and
prosecutorial resources." Prosecutors in large cities are confronted with an increasing backlog of cases. The
available judges, trial assistants, and courtrooms are barely adequate to handle the workload generated by a system
in which only a small minority of cases are actually litigated.'' Although some defendants may plead guilty solely for
reasons of conscience, a large number undoubtedly enter their pleas primarily in expectation of prosecutorial
concession. Removal of the incentive to plead guilty would place an intolerable strain on the system
-Lowering standard in order to pursue trial would decrease justice
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Even if the money were readily available, it would still not be clear that we could call upon sufficient numbers of
competent personnel. A lowering of standards in order to man the store adequately may well result in poorer justice.
It may also divert both funds and personnel from other segments of the criminal process, such as corrections work,
where they are arguably more needed.
WNDI 2007
106761230 3/7/16
63
Cards
- Issue of losing trial plays part in plea
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Contrary to office policy, likelihood of conviction is generally very important in determining what concessions will
be offered to induce a plea. While some trial prosecutors enjoy the challenge of a difficult case, most will offer
substantial concessions rather than risk losing a jury trial. Moreover, as one member of the office candidly stated,
each prosecutor's attitude towards the trial of a weak case depends on "his position in the office at the time of the
trial." Assistant prosecutors in the major trial division feel that they are evaluated more on their ability to win jury
trials than to dispose of cases efficiently. ,4n assistant prosecutor who has just been assigned to the major trial
division or who has recently lost one jury trial may offer substantial concessions in a case which he believes would
be difficult to win before a jury rather than jeopardize his position in this prestigious division by a jury trial loss.
-New York relies on plea bargain
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
The New York Supreme Court Bureau 35 disposes of an extremely high percentage of felony cases by guilty pleas.
Of the 1,404 cases prosecuted from January 1, 1970 to April 29, 1970, 45 were disposed of by jury trial, 8 by trial
before a judge, and 1,351 (96.2 percent) by guilty pleas
-For justice system to work individuals must use plea bargaining
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
The need to induce guilty pleas is much greater in New York than in Philadelphia. According to Homicide Chief
William Keenan, the New York Supreme Court Bureau must dispose of approximately 5,000 felony cases
annually.37 Due to limited courtroom and other administrative resources, only 150 to 175 of these cases can be tried
to a jury. Defense attorneys do not readily agree to nonjury trials,38 and thus a very large number of defendants
must be persuaded to plead guilty
-Defeat on record hurts lawyers reputation
Welsh S. White University of Pennsylvania Law Review, Vol. 119, No. 3. (Jan., 1971), pp. 439-465.
Despite the office policy in favor of uniformity, New York defense counsel have noticed a marked disparity in
concessions offered by individual prosecutors. As in Philadelphia, the type of bargain defense counsel can strike
depends in part on his relationship with the assistant prosecutor and on whether his client is in Finally, in deciding
upon appropriate prosecutorial concessions, the strength of the state's case is far more important in practice than it is
in theory.49 According to Martin Erdman, "Prosecutors in this city hate to have a defeat on their record. When they
think they have a weak case, they'll go to great lengths to avoid a trial.
Prosecutorial discretion
-Prosecutor needs to use discretion due to increase in crimes
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
The core of prosecutors' power is charging, plea bargaining, and, when it is under the prosecutor's control," initiating
investigations. Decisions whether and what to charge, and whether and on what terms to bargain, have been left in
prosecutors' hands with very few limitations. As violations of
existing criminal laws have increased1* and legislatures have created new crimes without providing resources for
trial and punishment of all those who could be convicted, prosecutors increasingly have been forced to allocate
resources by deciding whether to charge and whether to offer leniency in exchange for guilty pleas.
- Prosecutor determines how much impact punishment has on defendant
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
The decision whether or not to charge affects a prospective defendant in three ways. First, it determines whether he
must undergo the expense, anxiety, and embarrassment of criminal proceedings. Second, in those cases in which
clear evidence of guilt exists or can be obtained by whatever resources and effort the prosecutor wishes to invest, the
decision to charge determines whether or not there will be a conviction. Third, depending on the scope of judicial
discretion in sentencing and, to a lesser extent, on the degree to which dispensing power is held by parole or
corrections authorities, the charge decision may have a major effect on the penalty. A single lenient charge usually
will result in milder punishment than will heavier or multiple charges for the same conduct
WNDI 2007
106761230 3/7/16
64
Cards
-Prosecutor determines how much of the system individual must go through
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
The prosecutor's charge decision determines the extent of the suspect's contact with the criminal justice system. It is
also the key to the prosecutor's control over plea bargaining, although prosecutori may also bargain directly about
sentence by offering to make recommendations to the judge or by agreeing to a plea on condition that a specific
sentence be imposed. Prosecutors can reduce a charge for a killing with ambiguous motives from murder to
manslaughter, ignore a minor drug offense or charge it to the hilt, or charge a potential "threetime loser" accused of
a small theft under a mandatory life sentence statute or a one-year felony statute.
-Least discretion for grotesque crimes
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
Prosecutors exercise the least discretion over those crimes that most frighten, outrage, or intrigue the public, such as
murder, rape, arson, armed robbery, kidnapping, and large-scale trafficking in hard drugs, particularly when the
circumstances make the crime unusually heinous. Since visibility focuses greater scrutiny on the prosecutor, only a
prosecutor whose political position is unusually secure can disappoint expectations that are part of the climate in
which he works. Of course, what is seen as outrageous varies with time and place
-Prosecutor can take remorse into account
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
For the most serious crimes, prosecutors generally will charge the most severe offense the facts seem to support and
will bolster the charge with some available related offenses. If the defendant is particularly sympathetic -youthful,
near incompetent, or subject to great and understandable emotional stress -or if the victim excites little sympathy,
prosecutors occasionally may choose a charge below the maximum, but they ordinarily leave mitigation to the
judge, the jury, or the bargaining process." One major exception arises when the prosecution needs information or
testimony to convict a more important target and offers a lesser charge, even to someone who could be convicted of
a more serious offense.
-Prosecutor and an intermediate offense
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
At the intermediate range of offenses, such as major thefts without violence, bribery, and middle-level drug
offenses, reduced public attention results in greater prosecutorial freedom to act, although there is wide divergence
among jurisdictions about how the leeway is used. In some instances, such intermediate offenders as embezzlers,
drug dealers, and child molesters, whose offenses take relatively benign forms and who do not have serious prior
records, may have charges reduced or dropped if they agree to participate in a diversion programs or receive other
help.19 Recipients of small-scale bribes may be permitted quietly to resign their jobs or to make restitution .Lenient
treatment, which might be regarded as a form of pre-plea bargaining, is most likely to be available to well-to-do
offenders since their prior records will look better and they will have easier access to psychiatric or other help.
-Prosecutor can enhance sentences
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
Prosecutors have powerful weapons in statutes authorizing enhanced sentences for certain categories of crimes and
criminals. Recent years have seen a new wave of such statutes.25 These statutes authorize enhanced punishments for
persons on the basis of the aggravated form of their offenses or the extent of their prior records. Such statutes often
authorize longer prison sentences for persons with a certain number of prior convictions. They may either
automatically enhance sentences orgive the prosecutor discretionary authority to charge in a form that authorizes the
higher penaltye2'j Many of these penalties are in the form of mandatory minimum sentences, but prosecutors still
generally maintain control through their ability to reduce the charge to an offense that does not trigger enhancement.
Even without such explicit authority, the prosecutor can, by his choice of whether to charge a misdemeanor or a
felony for the latest event, decide whether to invoke enhancement. 27 Another important form of enhancement is the
ability to charge under one of the special statutes aimed at professional criminals, organized criminals, or racketeers,
which providefor prison terms far in excess of those imposed for the underlying offenses alone.28 The most
important of these provisions is the federal Racketeer Influenced and Corrupt Organizations(RICO) statute,29
enacted to fight organized crime but now invoked much more broadly by federal prosecutor RICO's means of
enhancing penalties generally apply only to fairly serious offenses for which prosecutors typically can impose severe
charges, but the ability to charge what would otherwise be a five- or ten-year felony at twenty years in prison is an
enormous increase in power.
WNDI 2007
106761230 3/7/16
65
Cards
-Prosecutor deals with cases on the line with plea bargain
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
Application of a criminal code inevitably involves dealing with cases that fall near the line between offenses.21 A
homicide may be charged as manslaughter or murder depending on the defendant's state of mind; government
officials' receipt of money from a prospective contractor may violate conflict-of-interest, bribery, or extortion
statutes depending on the interpretation of the suspect's intentionally ambiguous words and acts. Moreover, a
criminal act typically involves the possible application of several criminal statutes.22 Property may be damaged or
destroyed in the course of a burglary or its aftermath; theft of three different items may permit the charges to be
multiplied by three. The trial judge traditionally has had primary responsibility for preventing undue accumulation
of penalties, but charge decisions may have significant effects on sentences and the granting of parole.23 The recent
curtailment of judicial sentencing discretion
-US attorneys office can be involved in plea
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
In considering intermediate level offenses, it is important to note that the breadth of federal criminal jurisdiction
gives United States Attorneys broad power concurrent with state prosecutors to investigate and charge a wide
variety of offenses.31 Because the greater resources and often greater aggressiveness of federal agencies make the
prospect of federal prosecution a potent threat, the United States Attorney's decision whether or not to charge is in
itself an important exercise of prosecutorial power
- Plea best for minor offenses
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
Prosecutors exercise the greatest charging discretion when dealing with minor offenses, such as consensual crimes,
petty thefts, and assaults without serious injury. Much of the accepted wisdom about why the charge decision must
be discretionary relates to the need to deal with the large number of these offenses. When the harm is relatively
slight and the offender is not seen as dangerous, there is a natural temptation to "have it both ways" by not
prosecuting misconduct that most people are usually willing to let go unpunished, while still defining the conduct as
criminal in order not to appear to condone it or weaken society's ability to intervene if it desire a minor morals
offense such as indecent exposure is a good example. Few people would want to eliminate the offense, but few
would want to prosecute in every case either, since a person with a job, a family, and no prior record who is arrested
for exposing is likely to be devastated by the charge itself, regardless of the sentence ultimately imposed.
- Diversion program(plea) for minors
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
Diversion programs offer prosecutors a special discretionary power with respect to minor, and even some
intermediate, offenses. These projects are formal programs under which prosecution, conviction, or sentencing is
deferred while the suspect or defendant undertakes a specified course of conduct. Diversion as a formal alternative
to criminal sanctions was a recommendation of the 1967 President's Crime commission, and massive federal funds
were made available in the 1970's to finance such projects.34 As an informal practice, however, prosecutors and
courts had relied on diversion for many years as one approach for minor cases or for defendants with specially
sympathetic circumstances. Today, instead of conditioning dismissal on the defendant's taking a job, participating in
Alcoholics Anonymous, or undergoing psychiatric treatment, prosecutors can rely on formal programs as
alternatives to prosecution. Eligibility for diversion may depend on the unfettered discretion of the prosecutor and is
often determined without the use of any systematic standards or goals.36 The consequence is that some people
pressed into diversion programs would, without the existence of these programs, have had their cases dropped all
together.
-Different organizations support plea bargain
James Vorenberg Harvard Law Review, Vol. 94, No. 7. (May, 1981), pp. 1521-1573.
A few years ago, the only way to have a bargained guilty plea accepted in many courts was for the defendant -and
often defense counsel and prosecutor -to lie to the court and deny that a bargain had been struck.38 Today, the
United States Supreme the American Bar Association, the P resident's Crime Commission and the American Law
Institute have endorsed plea bargaining and explicitly recognized reducing the number of trials as one of its
justifications. Plea bargaining lets the prosecutor deal with two obstacles to his control of the outcome of cases docket congestion and the risk of acquittal. It enables him to obtain convictions in the mass of cases he can clearly
win at trial but that, in the aggregate, are beyond the state's capacity for full investigation, motions, trials, and
appeals. It also enables him to win some cases he might lose if he had to go to trial.