A Plea Bargain System of Justice:

Plea bargains are an important part of the criminal justice system throughout the United States. In a plea bargain the defendant gets a reduced sentence or the dismissal of some of the charges. In return, the defendant must waive important constitutional rights and plead guilty or “no contest” to one or more crimes. The defendant forgoes the right to a trial and the requirement that he be convicted by a unanimous jury. The defendant also must waive the right to confront his accusers and the right against self-incrimination relating to the crimes to which he or she will plead guilty. The case is resolved by a “bargain,” a deal between the defendant and the prosecutor. 95% or more of all criminal cases in the U.S. are resolved by plea bargains.

Note that in the U.S. prosecutors have the discretion to decide whether to charge a person with a crime and which crimes to include in the charge.

Trials are extremely expensive and time consuming. There are not enough prosecutors, public defenders, judges or courtrooms to handle the trials that would result if plea bargains were not permitted. Many defendants who are not indigent do not want to pay the costs of a full-scale criminal trial. Even if it were possible to hold a substantially increased number of criminal trials, defendants wouldn’t get the lenient sentences that are usually part of a plea bargain. In addition, the inmate population in jails and prisons would explode. Because plea bargaining is an efficient way to handle the volume of criminal business before the courts, it is much less expensive than would be a system that actually depended on trials. The money saved by the plea bargain system allows the states and the federal government to devote more resources to other needs, such as schools and public health.

Plea bargaining serves practical interests for most stakeholders:

• The accused, innocent or guilty, can avoid the cost and disruption of a trial;
• The accused, innocent or guilty, gets a sure result and avoids the risk of harsher punishment if they go to trial;
• The accused, innocent or guilty, can avoid the publicity a trial could involve;
• The prosecutor gets a guaranteed conviction;
• The prosecutor saves the expense and the time involved in a trial;
• The victim gets a guaranteed conviction, although perhaps not the punishment that the victim would want imposed on the accused;
• The public avoids the expense of conducting a trial on every crime charged.

 

The U.S. Supreme Court, in a 2012 case, held that that:

“To a large extent … horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.” [emphasis supplied; citation omitted] ” [Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial” [citation omitted]
The Court held that “In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” The Court also observed that, “To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties.” All Supreme Court quotations are from Missouri v. Frye, 42 Supreme Court Reporter 1399 at 1408 (2012)

 

Plea Bargaining Considered:

Question #1: For all parties involved, plea bargains trade justice for efficiency. From the standpoint of the public, do you agree or disagree with this public policy choice? Explain your reasons with reference to: (a) the concept that the result of the criminal process should be justice rather than the result of “horse trading” and (b) the fiscal impact and whether money would be better spent on other priorities.

Most criminal defense attorneys like to maintain good relations with the prosecutors. This makes it easier for them to do their business, and they may be able to get better deals for at least some of their clients in future cases. However, for other clients, they may have to choose between vigorous advocacy and maintaining a good relationship with the prosecutor.

Question #2: Defense attorneys usually charge a flat fee for representing a defendant in a criminal case, whether the case goes to trial or there is a plea. How does this affect the plea bargaining system? What can a defendant do about this problem?

Suggested Response:

This is a difficult and complex question. One good response is to make sure that the defense attorney is ethical and takes his or her responsibilities seriously. This usually can be determined by checking on how the lawyer has treated other clients and thoroughly interviewing him or her.

In some cases, it will be especially difficult for the prosecution to convince all of the jurors that it has proven guilt beyond a reasonable doubt. This could occur when a witness has a prior history that impeaches his or her credibility or because the police violated the defendant’s constitutional rights and important evidence is inadmissible. In these cases, a plea bargain allows the government to get a conviction with the defendant receiving some penalty, even if the likelihood of prevailing at trial is very slim.

Plea bargaining has been criticized because it can be used by the police to get a conviction from an innocent person. The combination of rewards and legitimate threats can endanger the correct legal outcome. Even if an innocent defendant resists pressure from the government to accept a plea bargain, the defendant may have to pay a heavy price to maintain his or her innocence. Here is an example that actually occurred in Los Angeles, California.

Alex’s Story

Alex was a middle-class man in his early 30’s who was in the import-export business. He had a family with a wife and three young children. Alex was accused of shooting his former business partner in an attempted murder. Alex was innocent, but the evidence against him was very strong with an eye-witness willing to testify that he was the shooter and physical evidence that pointed to him.

Alex was arrested, and while in custody he was interviewed by the police for more than an hour. Thinking that he was protected by his innocence, Alex waived the right to have an attorney present. The tape of the interview shows that the police used only appropriate interviewing techniques. One played the role of the “bad cop,” correctly and repeatedly telling Alex that the government had a great case with good witnesses and strong physical evidence, and that if Alex was convicted after a trial, he would be in jail for at least 25 years and possibly for life. The “bad cop”officer was intimidating and threatening. The “good cop” was very sympathetic to Alex’s family situation. He said that if Alex agreed to plead guilty the police officer could get the prosecutor to recommend a 10-year sentence so that Alex could live with his children again before they grew up. If Alex got out in ten years, he could see his oldest daughter graduate from high school. Again and again Alex insisted on his innocence and refused the idea of a plea bargain. Again and again the police officers tried different ways, some harsh, others apparently sympathetic, to convince Alex to confess. Alex refused to confess and maintained his innocence.

Alex was in jail for about two months, until his family could raise the $100,000 to pay the bail bondsman to get him out on his $1,000,000 bail. (The bail was high because of the seriousness of the charge and because Alex was considered a flight risk. He was in the import-export business and had contacts in foreign countries.) The $100,000 was the bail bondsman’s fee, and it would never be returned, even if Alex won his trial. The first lawyer that Alex hired charged him a $25,000 flat fee and then refused to investigate the case. The lawyer advised Alex to plead out. Then Alex got a new lawyer paying him more than $50,000. This lawyer did his job, investigated the case, and found evidence that Alex could not possibly have fired the shot that injured his former business partner, the trajectory of the bullet was all wrong for that to have happened. The lawyer showed the evidence to the DA who claimed that he could still get a conviction. However, the day before trial, the DA dropped the case entirely! It probably took Alex about ten years to recover financially from the costs of maintaining his innocence. However, he has no criminal record and he did not suffer the indignity of having to admit to a crime he did not commit.

One of the key elements in the plea bargain system is the “trial penalty,” the fact that a defendant who insists on a jury trial and is convicted will get a longer sentence than a defendant who pleads guilty and enters into a plea bargain. In addition, as the story of Alex shows, justice, even for the innocent, can be expensive. Balanced against stories such as the one described above are the millions of people who have avoided the expense of trial and received more lenient sentences by entering into a plea bargain. In addition, every day the plea bargaining system benefits society by achieving some measure of justice at tremendous cost savings.

Question #3: Studies show that people who are innocent are less likely to enter into a plea bargain than those who are guilty. Thus, innocent people who are ultimately convicted will suffer more severely from the penalty of an increased sentence. Innocent people who are eventually acquitted still incur the costs of defense. What are the implications of this to a justice system that relies on plea bargains?

The overriding duty of the prosecutor is to see that justice is done. This means that if a prosecutor, at any point, even after conviction, becomes convinced that a person is not guilty of the crime of which he was convicted, the prosecutor should seek dismissal of the case or try to overturn the conviction. This is exactly what the prosecutor eventually did in Alex’s case. However, prosecutors are usually judged on their conviction rate. In addition, district attorneys are politicians who could sacrifice their popularity if they allowed someone to go free who was thought by large numbers of the public to be guilty. Thus, the prosecutors may push for plea bargains in which innocent people plead guilty to crimes they did not commit. On the other hand, prosecutors who want to keep up their conviction rates, may agree to plea bargains that don’t adequately punish a defendant and don’t effectively deter crime.

In most jurisdictions, the judge who will preside over the trial is not permitted to be involved in the plea bargain. The judge can only accept the plea bargain or reject it. The idea is that the judge who presides over the trial could become biased toward the prosecution if he knows that the defendant is thinking seriously of admitting guilt. By the same token, the prosecutor doesn’t want to try a case in the Courtroom of a judge who thinks that the prosecution has been unreasonable in its plea bargain negotiations. Judges almost always accept plea bargains.

Question #4: Many people charge that the legislatures of some states and the federal Congress have increased the length of sentences for some crimes, not because the law-makers believed that the severity of the crime justified the longer sentence but only to give prosecutors an edge in plea bargaining. Is this good public policy? Explain your reasons.

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