A Unit for Honors Students
1. Review the film clip — the first 31 minutes of the film – until Dee Roberts’ friend takes a plea and Dee sinks to the floor of her cell with her head in her hand. Make sure it is suitable for the class.
2. Decide whether to organize the post-viewing presentation by presenting the information in the Post-Viewing Enrichment Worksheet for American Violet through direct instruction, by asking the questions in the Snippet Lesson Plan, by having an attorney cover these points and more in a presentation to the class on plea bargains, by having students research the process of plea bargaining on their own, by having students read and respond to the questions in the Worksheet, or by a combination of all five methods. If using the Worksheet, review it and make any necessary modifications in light of the sophistication of the class and its prior exposure to information about the U.S. criminal justice system.
3. Select the discussion questions and the suggested assignments to use in the lesson.
Using the Snippet in Class
1. Introductory Discussion
Start the class by asking students to define plea bargaining and to describe a situation that they know about in which someone was offered a plea bargain. Guide the class discussion to at least the following points, supplying the information if the class cannot respond to the questions:
- a definition of plea bargaining – In a plea bargain, the defendant gets a reduced sentence or the dismissal of some of the charges; in return, the defendant must plead guilty or “no contest” to one or more crimes;
- when a person accused of a crime enters into a plea bargain, he or she waives certain constitutional rights;
- almost all criminal cases (95%, according to the U.S. Supreme Court) end in a plea bargain, not a trial;
- it is up to prosecutors to decide whether to charge someone with a crime or what particular crime to charge them with.
Tell the class that as they watch the film clip, they should think about the benefits and costs of the plea bargaining system to persons accused of crimes, to prosecutors, and to society.
2. Show the first 31 minutes of the film, ending when Dee Roberts’ friend takes a plea, although she was innocent, and is allowed to go home. Dee then sinks to the floor of the cell with her head in her hands.
3. After the clip has been shown implement the post-viewing discussion strategy that you have chosen. See Preparation Step #2. The Post-Viewing Enrichment Worksheet is set out below. For a copy in word processing format, click here.
Enrichment worksheets are a TWM innovation which provides information as well as questions to serve as topics for quick writes or journal entries.
View Post-Viewing Enrichment Worksheet for American Violet
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?
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 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.
[End of Worksheet]
Post-Viewing Discussion Questions
- Ask the class to look at plea bargaining from the standpoint of the victim and the victim’s friends and relatives. [A good discussion will include the concepts that a lenient plea bargain will not satisfy their legitimate desire to have the criminal punished. However, plea bargaining spares them the agony of a trial and the risk of feeling very badly if the defendant is acquitted.]
- Identify some of the factors which can result in plea bargains which are either too lenient or too harsh. [A good discussion will include the following points: (1) success for either side depends upon the skill of the attorneys in negotiating not just the guilt or innocence of the accused; (2) prosecutors are not required to disclose any problems with their evidence; (3) prosecutors are eager for plea bargains because it results in an easy conviction and prosecutors are judged on the number of convictions they achieve; (4) in certain situations some defense attorneys may not want to advocate strongly for their clients because the defense attorneys have to work with the prosecutors on other cases; (5) the accused may feel pressure to agree because of the disruption and cost of a trial.
- Conduct a discussion on whether or not plea bargaining should be replaced with a system which allows defendants only two choices: pleading guilty or going to trial; have the class evaluate the pros and cons of each system. This can also take the form of a debate pro or con on the proposition: Plea bargaining should be replaced with a criminal justice system in which plea bargaining would not be allowed and an accused person could only plead guilty or go to trial.
- Solicit ideas about how to reform the plea bargaining process to improve the results without substantially increasing costs; have the class debate their efficacy; if the ideas are very good, have the proponents write them up and send them to their legislative representative.
Additional Discussion Questions for Use When Showing the Entire Movie
1. What factors in the makeup of the victims of the excesses of the District Attorney may have led to their unwillingness to seek justice along with Dee Roberts?
Answers will vary: Some may suggest that general racist attitudes are responsible. Others may argue that poverty, lack of education and overall fear of the system may have been important factors.
2. Given the fact that the U.S. justice system is an adversarial system in which the different parties compete to see who wins, what is the role of the ACLU and organizations like it?
Answers will vary but the basic concept is that the ACLU protects all of our constitutional rights and sometimes that means protecting the rights of people we do not agree with, or even despise, as when the ACLU protected the rights of Nazis to parade in predominantly Jewish neighborhoods.
3. Drug sweeps are often seen as targeting particular groups and have been criticized for their racist and classist underpinnings. What regulations do you think can be put in place to see that the government’s task of controlling illegal substances can be aligned with an individual’s civil rights?
Any law enforcement action must be based upon some hard evidence rather than merely informant information; moreover, unreliable informant information should be discounted. In other words, law enforcement actions should be based on good police work. Students may come up with their own thoughts and all well-reasoned responses are acceptable.
4. Predict what would have happened had the District Attorney failed to back down from his position and moved ahead with a trial against Dee Roberts?
Had the justice system worked, she would have been acquitted; however, given the public defender who had been assigned to her, that was not very likely.
Additional Assignments for Use When Showing the Entire Movie
1. Research the protection against illegal search and seizure found in the 4th Amendment of the U.S. Constitution and write an expository essay in which you address its relationship to the issue of drug sweeps raised in American Violet. Present your findings to the class as a whole.
2. Read the two plea bargaining cases decided by the Supreme Court in 2012 and write an essay about how the Court’s decision may have influenced the events seen in American Violet. The cases are Missouri v. Frye, 132 Supreme Court Reporter 1399 (2012) and Laffler v. Cooper 132 Supreme Court Reporter 1376 (2012).
3. The ACLU protects the Constitution by taking on cases that sometimes require it to represent people who are despised by society. Often, its positions are, at least in some quarters, unpopular. Its critics accuse it of meddling and causing trouble, and of stretching the constitution beyond its real meaning. Evaluate the role of the ACLU in American society.