BERGEN COUNTY TECHNICAL HIGH SCHOOL
Due Process and Plea
Bargaining
Tarek Meah
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Introduction:
Television shows and films such as Law and Order and NCIS commonly portray
defendants being tried in court with a jury. Contrary to what Hollywood depicts through
these programs, only five percent of felony convictions ever reach a jury. The remaining
defendants settle their cases by way of the plea bargain- a process in which the prosecutor
makes a concession to the accused in exchange for the defendant’s pleading guilty. The plea
bargain prevents the criminal courts of the United States from overloading and seizing up.
By waiving his sixth amendment right to a trial by jury, the defendant receives a lesser
charge and a shorter sentence. However, legal scholars argue that there are flaws with the
plea agreement: it denies a defendant the right to due process- a fundamental,
constitutional guarantee that all legal proceedings will be fair and it denies a defendant an
opportunity to be heard before a jury of his peers. Precedent established by the United
States Supreme Court in 1927 contradicts this belief for it was established that a guilty plea
is constitutional so long as it was entered into voluntarily and without coercion. Another
argument presented by opposing legal intellectuals is that the race, gender, and
socioeconomic class of the accused impacts his/her decision to plead guilty, which further
denies him/her the right to due process, as portrayed in the PBS Frontline program, The
Plea. Although race and gender influence the defendant’s decision to enter a plea of “guilty,”
and may deny him/her due process, the most important factor is the socioeconomic status
of the accused.
Point 1:
The most prominent factor in deciding whether or not one’s rights to due process
are denied is the financial status of the accused. As profiled in the documentary, The Plea,
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Texas native Erma Faye Stewart was charged with illegal possession of drugs with the
intent to sell. Stewart was an indigent and could not afford to make bail, and therefore
made the decision to plead guilty while incarcerated. Her plea was, by all accounts,
voluntary, thus resulting in the waiving of her right to a jury trial. A trial by jury is an
essential attribute of due process. However, her co-defendant, waitress Regina Kelly, had
the opportunity to post bail and was not pressured to plead guilty. The charges were later
dismissed once authorities became aware that the informant who accused Kelly and
Stewart had lied. Because Kelly was financially able to post bail, her rights to due process
were not denied. Furthermore, one’s socioeconomic class determines whether or not the
defendant will have a reliable lawyer to represent him/her in court. Both women were
indigents and were appointed public defenders. Public defenders are attorneys hired by the
government to defend those who cannot afford a private attorney. Such attorneys are
overwhelmed with an excessive caseload, and there is evidence that they encourage their
clients to plead guilty- a decision Stewart made. Stewart could not afford a private attorney,
due to her low socioeconomic class, but had she been able to, her choice to plead would
have been different. Since private attorneys are paid by the hour, it is reasonable to assume
he would recommend Stewart to go to trial, in which the charges of the case were later
dismissed. A final reason as to why one’s socioeconomic class denies him/her right to due
process was explored in the case of Gideon vs. Wainwright. The facts of the case are as
follows: Clarence Earl Gideon, a semi-illiterate indigent, was charged with breaking and
entering a pool room with the intent to commit petty larceny and was forced to defend
himself in court. He was too poor to afford representation by counsel and so his sixth
amendment right and his right to due process were denied. While incarcerated, he
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appealed his case on the grounds that the sixth amendment required he be represented by
a lawyer. The Court overturned stare decisis set in place by the 1942 case Betts vs. Brady
which stated that counsel not be offered to an indigent when prosecuted by the state. In the
end, Gideon won the case as well as overruled case law. Overall, due to one’s lack of
financial resources and inability to pay for a private attorney, the right to due process is
compromised because of a defendant’s incapability to receive all the benefits of the
Constitution.
Point 2:
Another factor that influences a defendant’s decision to enter a plea and denies
him/her the right to due process is his/her race. No other piece of historical evidence
greater depicts this act of injustice than the antebellum society of the Civil War. During this
era the Constitution was interpreted to only protect Caucasian males, denying native born
African Americans and Native Americans the same justice. In 1857 the United States
Supreme Court heard the precedent setting case in race, entitled Dred Scott vs. Sandford.
The United States Supreme Court made a landmark decision which had an extremely
significant ruling. The opinion of the court written by Chief Justice Roger B. Taney was that
African Americans were not citizens of the United States, and therefore are not afforded the
protections under the Constitution. This decision goes against the modern Equal Protection
Clause of the Fourteenth Amendment which states that "no state shall ... deny to any person
within its jurisdiction the equal protection of the laws." And it additionally contradicts the
notion of due process. Furthermore, empirical data suggests “…the rate of incarceration for
African Americans and Hispanics has risen far faster than the rate for whites” (Savitsky 2).
Due to this data, African Americans have a more negative perception of the court system,
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and a defendant’s subjective opinion influences the type of plea bargain that he will be able
to make. Black defendants are also more risk averse in regards to the criminal justice
system than are Caucasian defendants. It is the significance of the negative perception, and
of the reluctance to take risks, that makes the plea bargaining system more harmful to
African Americans that to white defendants (Savitsky). Moreover, a person’s race plays a
significant role in determining his/her socioeconomic class. A social experiment conducted
by the Council of Conservative Citizens proves that more African American and Hispanic
families receive welfare than do Caucasian families. The amount of welfare given to African
Americans is extremely higher than the amount provided to Caucasian families, even
though African Americans make up less than twenty percent of the population of the United
States. As mentioned in the previous argument involving financial status, one’s
socioeconomic class compromises his/her right to due process, and one’s race usually
determines his/her economic standing. Through historical events, as well as empirical data
and different perceptions of the court system by a certain race, it is clear that there is
indeed a correlation between race and the denial of due process rights in plea bargaining.
Point 3:
The final component in influencing whether or not a defendant’s rights to due
process through plea bargaining are denied is the accused’s gender. A fundamental right
provided to citizens of the United States is the privilege of voting. Following the Civil War, a
meeting was held in Seneca, New York, which covered the topic of women’s suffrage. Led
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by Katherine Cady Stanton, the group worked to argue for women’s rights to vote. In order
to protest the continued exclusion of women in the electoral process, activist Susan B.
Anthony tested the law by voting for Ulysses S. Grant and was convicted of illegal voting
(Mawr). In this current society, due process is the legal requirement that the state must
respect all legal rights that are owed to a person – one such right is that to vote. Had she
been a male, she would have never been convicted, thus proving true the argument which
states that one’s gender does, at times, deny him/her the right to due process. Additionally,
one’s gender influences the defendant’s right to plead guilty and compromises the right to
due process if the defendant is a single mother with little support system. As profiled in the
documentary, The Plea, Erma Faye Stewart was raising two children on her own with only
the help of government welfare, a benefit which was no longer provided to her after she
pled guilty. In order to care for her children, she decided to plead guilty and became
destitute. Empirical data shows that a woman is more likely to care for her child born out of
wedlock than her male partner and that sixty four percent of women lived with their
children prior to imprisonment compared to forty seven percent of males. Furthermore,
one’s gender influences his/her sentence and the charge brought upon the defendant.
Stewart was charged with the intent to sell illegal drugs, the most common crime
committed by women, as stated by the Drug Enforcement Administration. Statistics show
that more women than men are selling drugs at street level, and are the ones arrested,
whereas the male leaders of the drug cartels remain in anonymity. Mandatory minimum
laws- laws that require harsh, automatic prison terms for those of certain federal and state
crimes- “have increased in number… [and] require longer terms” ("Mandatory Minimum
Sentencing"). Psychological data collected by the Women’s Prison Association (WPA)
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proves why women are more likely to take part in drug crimes; Executive Director Georgia
Lerner of the WPA states: “Much of what we know about women's pathways into crime has
to do with earlier trauma, has to do with mental illness, addiction, relationships, so they're
often involved in crime through the relationships they have with men…” (McGalliard).
Because women are “low-level players” in the drug deals, they do not possess sufficient
enough information which could be used in a plea negotiation, thus resulting in a guilty
plea. Generally, since a defendant’s gender contributes to the plea entered and the crime
committed, his/her rights to due process are denied.
Conclusion:
Essentially, there are three factors that influence the defendant’s decision to enter a
plea of “guilty,” and may deny him/her due process, the most important being the
socioeconomic status of the accused. Race and gender also influence the denial of due
process rights, as proved in the previous arguments. The financial status of the offender
determines whether or not s/he has the ability to post bail, and pay for a reliable lawyer- a
cause explored in the 1961 case of Gideon vs. Wainwright. Precedent established after this
lawsuit overturned the original opinion decided on by the Supreme Court after the Betts vs.
Brady case, which states that indigents are not allowed representation of counsel by a court
appointed lawyer. Secondly, the defendant’s race may deny him/her the right to due
process. As established at the commencement of the 1857 legal proceeding of Dred Scott
vs. Sandford, African Americans were not considered citizens of the United States, even if
they were born on American land, and did not have the seventh amendment right to sue in
court. The negative perception of the criminal justice system and the low socioeconomic
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class of most Black and Hispanic families also factors in when deciding whether or not the
rights to due process are violated. Finally, the gender of the one being sued influences the
defendant’s decision to enter a guilty plea and may deny him/her due process. For
example, women in the post- Civil War era fought for suffrage, namely Susan B. Anthony,
who was convicted in court for voting. She would have never gone to court if she was a
male. Gender also affects what crimes are committed, as empirical data suggests. More
women are convicted of nonviolent, drug related crimes with heavy sentences up to twenty
five years, as obligated by the Mandatory Minimum Laws. But women are more likely to
care for their children born out of wedlock than are men, which is a leading factor in their
pleading guilty- an action that is constitutional yet denies a defendant the right to due
process. In essence, there are noticeable flaws in the system of justice of the United States,
ranging from socioeconomic class to race and gender. Certainly this is better than having
the courts of the United States seize up due to the overwhelming of defendants to be tried.
And although “the most beautiful words in the English language are ‘not guilty’” (Maxim
Gorky), the plea bargain keeps the system of “fairness” away from its breaking point.
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