Chapter 9
Trial Courts: Bargaining and Sentencing in Criminal Courts
Most criminal cases do not result in a trial, so this chapter focuses
on the realities of plea bargaining, imprisonment and
punishment.
I.
The “Courtroom Work Group”
A.
Typically, courtrooms appear disorganized and loud. Yet,
behind it all, there is a judicial machine at work.
B.
Courthouse regulars (judges, prosecutors, defense
attorneys) share workspace and goals (dispose of cases).
They are stable actors, unlike defendants who come and
go.
C.
Triangle of Interdependence
1.
Judges need prosecutors and defense attorneys reach plea
bargains (goal=dispose of cases).
2.
Prosecutors need defense attorneys to persuade
defendants that pleading guilty is best and judges to accept
those pleas (goal=% of defendants convicted)
3.
Defense attorneys need prosecutors to not pursue or give
harsh sentences (goal=minimize penalties).
D.
The machine – no two crimes/cases are identical, but tend
to fall within developed categories. Once placed into the
category, tend to follow a preset process and outcome
quickly.
II.
Plea Bargaining
Guilty pleas outnumber trials 5:1 (federal) and 10:1 (state/local).
Most of these are plea bargains (process by which
defendant pleas guilty expecting consideration by
government.
•
Types of Plea Agreements
1.
Charge bargaining – pleads guilty to less serious charge
(robbery instead of armed robbery). Often reflect weakness
of prosecutors case on serious charge.
2.
Count bargaining – pleads guilty to one or some, but not all
of the counts. Prosecutor dismisses other counts and
charges.
3.
Sentence bargaining (most common) – based on promise of
a specific sentence.
Bargaining Process – what influences results?
Seriousness of offense (more serious, less flexible is the
prosecutor). Fig 9.1
2. Criminal record (longer the record, less flexible)
3. Strength of prosecutors case (stronger the evidence, less
flexible)
C. Why cases go to trial: Two major factors
•
Strength of prosecutor’s case (defendant may determine that
chance of acquittal is sufficiently high)
•
Severity of the penalty on conviction (defendant may
determine that the bargained penalty is too severe, better to
risk a trial)
1. The Courtroom Work Group labels defendants who choose trial
as “irrational” when the state has a strong case
2. Means that some cases more likely to go to trial. Which ones?
•
Property offense less likely (state probably has compelling
evidence; sentence not long)
•
Serious crimes more likely (inflexible prosecutors;
B.
1.
defendants willing to risk it given penalty)
III.
Plea Bargaining and the Courtroom Work Group
Plea bargaining is not so much a result of the size of courtroom
dockets, but prosecutorial discretion. That is, plea
bargaining is simply a result of the nature of the Courtroom
Work Group interactions and interdependence; not a result
of too many cases.
A.
Presumption of Factual Guilt – remember, after initial
stages, there is a presumption of guilt (they were unable to
get their case dismissed early
B.
Costs and Risks of Trial – no one in the group likes trials.
They are too costly (judge, bailiff, clerk, paid witnesses,
attorneys, security, victims, jurors, utilities) and too risky (no
one likes uncertainty).
C.
Plea bargaining may be a result of the work group’s
assessment that the legal penalties do not really match the
defendant’s threat to society (provides flexibility)
D.
Plea bargaining does in fact produce lighter sentences. “He
takes my time, I’ll take his.”
E.
1.
2.
3.
IV.
A.
B.
Copping a Plea
Nolo contendere is one option where the judge accepts a
plea “I will not contest it.” Defendant gets immunity from any
civil cases related to crime.
Plea of guilty means more than admission; it also results in
waiving rights during court process (presumption of
innocence, jury trial, confrontation of witnesses). Judge
makes sure (perhaps through written questionnaire) of
defendants understanding.
SC has ruled that defendants may be able to withdraw guilty
plea, especially if agreements change during process (new
prosecutor).
Debate: Abolish Plea Bargaining?
Proponents argue that it occurs when state case is strong;
opponents say opposite.
Proponents argue that it reflects rational defense attorney
(imminent trial); opponents argue it reflects a stacked deck
(institutional and information asymmetry against defendant).
V.
Sentencing Structures
20th century = great flexibility (legislature established many
options; courts given extensive discretion; parole boards,
under the executive branch, had great flexibility to
determine length of term). All motivated by goals of
rehabilitation.
21st century = legislatures have established harsher and less
flexible sentencing rules. Court and parole board discretion
has been sharply limited.
A.
Legislative Sentencing – 1990s, began limiting judicial
discretion via sentencing guidelines, mandatory minimums.
Also began either limiting parole board discretions or, in
some cases, removed option of early release.
B.
Judicial Sentencing – flexible historically with goal of
individualizing cases (type of punishment made to fit
criminal). Any potential problems here? Recently, critics
have won the battle and pushed for narrow ranges of
sentencing options/lengths.
C.
Executive sentencing – Parole (governors, correction
officials, and parole boards determine early release)
1.
Parole is the conditioned release of an inmate (supervised
by parole officers; return to prison if conditions are violated).
2.
Most states have “good time” awards or days off term built
up for good behavior. Justification – institutional order and
overcrowding.
3.
Several states have begun tightening parole board discretion
and the potential for early release.
VI. Forms of Punishment – from stocks, flogging, exile, and
branding to only imprisonment, probation, fines, and death.
6.5m adults in correctional supervision. (Fig 9.2)
A. Imprisonment – 1.4m inmates. Grown since 80s.
1. Overcrowding – biggest problem. State = 15.5% over capacity;
Federal = 31% more than buildings originally were designed
to hold.
2. Prison conditions – 1970s, courts began finding that prison
conditions violated 8th amendment (cruel and unusual). Rule
that entire systems of 9 states unconstitutional. This has
changed a bit over last 15 years. Court has now required
proof of “a deliberate
indifference” and Congress ended federal court supervision of
state prisons in 1996.
3. Costs – 500-cell prison costs $337m over 30 years; $20-25,000
per inmate for a year.
B.
Probation – granted to 60% of offenders; 4m on probation
(doubled since 1980s).
1.
Designed to control offender without incarceration.
Conditions: keep job, support family, report to officer.
2.
Justified on 2 grounds: prison inappropriate for some
defendants; less expensive.
C.
Fines – oldest and most used punishment. Generate $1b
annually for local gov’ts. Often use in combination with
other sanctions.
D.
Death Penalty
V.
The Death Penalty
Since 1920, average annual executions in U.S. dropped from 167
to 21 in early 60s. Around the world:
http://en.wikipedia.org/wiki/Image:Death_Penalty_World_Map3.png
Debate: Opponents say it is morally wrong for state to take life,
not a deterrent, discriminatory.
Supporters argue that it is just retribution (eye for an eye), does
deter, and discrimination is a separate issue.
A. 8th Amendment Standards: DP cruel and unusual?
1. In Furman v. GA (1972) ruled that state were administering it
unconstitutionally.
2. Afterwards, 37 states enacted new legislation to comply and
eventually, SC reversed decision with a few stipulations:
•
Death Penalties cannot be mandatory.
•
Death Penalty cases must be bifurcated (i.e., sentencing
phase separate from trial phase).
•
Recently (2005), court raised minimum age to 18 and
declared DP for mentally ill unconstitutional
3. Partly due to its popularity, 38 states have the DP and
sufficiently addressed SC guidelines and 78% of pop is
covered.
B. Death-Row Inmates – 3600 on death row, mostly from the
South, then West. 98.5% male, majority white, without high
school diploma (52%), prior felony conviction (2 out of 3),
disproportionately
minority (43%), median age 38.
C.
Since reinstated in early 70s, 1171 executions since 1976 (MS =
10; over 60 nationwide in 08-09); there have been over 6000
sentences of death since then, ½ of these in two states, well over
500,000 murders reported 94% of those sentenced to death since
1976 have evaded it, average time before death 15-sentence
carried out=12 years (avg sentence 15-20 years; time served 10).
D.
2312 have had death sentences vacated or commuted by
governor.
E.
Overwhelmingly, murder convictions do not result in death penalty.
Average time served for murder=8.5 years.
VI. Fairness of Sentencing
A.
Sentencing Discrimination – exists when outcomes associated
with illegitimate attributes.
B.
There is mixed evidence that racial minorities are sentenced more
severely or are more likely to be sentenced. Legal factors more
important than race. Conclusions from studies: no racial bias in
death sentences and little evidence of overt discrimination against
African-Americans in noncapital sentences.
C.
1.
2.
D.
1.
2.
•
•
Sentencing disparities – divergence in sentence length
imposed for same crime without clear reasons.
Geography – it matters where you are sentenced (South
harsher; 80% of executions there; Urban courts more likely to
issue probation than rural).
Judge – it matters who sentences you (study shows that Fed.
DC judges appointed by Dems more likely to decide for
defendant. Northern judges more supportive of defendant
concerns).
Increasing Consistency: justification has been to make
sentencing consistent and uniform (remove judicial discretion)
is good because it removes bias and undue leniency.
Sentencing guidelines have been introduced in at least 17
states (others pending). Congress also moved in this
direction in 1987.
Two kinds (overall, associated with more severity):
Voluntary: nonmandatory norms of using previous sentencing
patterns to determine present ones. Judges don’t tend to
abide by these.
Mandatory: require judges (via legislation) to follow
Guidelines or mandatory minimums when considering
sentence (no discretion). Judges do abide by these
(see Exhibit 9.2).
E. Increasing Severity of Penalties - Public wants it,
legislators providing it (why, for deterrence).
Example: Truth in Sentencing Laws (must serve
85% of term).
1. Nullification by Discretion – evidence suggests that
sentencing mandates have not removed discretion
but only relocated to prosecutors, police, and judges.
May increase severity, but actually reduces
probability of getting punished. More severe, less
likely imposed.
2. Side effects: costs (longer sentences, more trials,
pressure to plea bargain)