Plea Bargaining, Its Definition, History and Discussion

Definition of Plea Bargaining

Plea bargaining is the exchange of official concessions such as the reduction of the severity of charges and reduction in the length of sentence that will be recommended by the prosecution for self-convictions in the form of guilty pleas from defendants. Typically, a defendant will be faced with a charge at the arraignment which will be the maximum charge befitting his/her crime and will carry the maximum punishment that the defendant will be held to if he/she decides to proceed to trial. Going to trial is often considered risky due to the unpredictability of jury outcomes for the defendant as well as the complexity and length of trials and the higher burden of proof that would rest upon the prosecution. Many defendants, therefore, prefer to enter guilty pleas instead of hoping that they will be proven innocent or will receive an acquittal at trial (Bar-Gill and Ben-Shahar, 2009).

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Plea bargaining Background and History

The practice of plea bargaining was essentially unknown up to the second half of the 19th century and even during this age it was met with incredible disapproval form the Anglo-American courts who actively discouraged guilty pleas and encouraged defendants who pleaded guilty to recant their pleas for the not guilty plea to allow for a more rigorous examination of the evidence presented and of the defendant in order to ensure that he/she did not fall victim to his own ignorance and imprudence (Alschuler, 1979).

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 However, in the coming decades, criminal law would undergo substantial expansion to necessitate the prosecution of a number of victimless crimes as a result of violations of statutes such as the liquor prohibition statute. Despite the general disapproval from the courts, scholars, press and crime commissions, plea bargaining had begun to take roots in the Anglo-American legal system and by the 1920s the criminal courts had become increasingly dependent on plea bargains as a route to expedited convictions. The Department of Justice took incredibly dubious steps to ensure that the practice became entrenched in all criminal proceedings and that the courts could not declare it illegal (Alschuler, 1979). Moreover, may court decisions exacerbated the need for plea bargaining as they provided protection from the criminal process and thus leverage during negotiations.

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It is estimated the 95% of cases in Federal and state courts in the United States were resolved through a plea bargain (Bureau of Justice statistics, 2005). Moreover, every two seconds a defendant accepts a plea deal and prosecutors may practice for months without ever going to trial. Despite the criticism and disapproval that plea bargaining received in its infancy, it has now become an inherent and crucial part of the criminal justice system that it would be impractical to ban its practice.

A Discussion on Plea bargaining

In its infancy, plea bargaining had already increased the number of convictions based on guilty pleas to over 70% in all major Anglo-American cities (Alschuler, 1979). Pleading guilty was found to reduce the chance of getting a penitentiary sentence for by half as compared to going to trial. Guilty pleas almost tripled the chances of getting early probation and doubled the chances of getting a suspended sentence. The political corruption that characterized the post-civil war period, as well as the many satisfied customers, ensured that plea bargaining continued to flourish amidst great condemnation by the court but surprisingly, little judicial review.

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In 1967 the ‘due process’ revolution triggered the Shelton v United States decision by a panel of the US court of appeals that accepted a contention by Shelton that plea bargaining was unlawful as well as the Mapp v Ohio decision that undermine the likelihood that prosecutors could succeed at trial using illegally obtained evidence (Alschuler, 1979). Although these decisions, as well as the effects of the ‘due process’ revolution, should have served to curtail plea bargaining by ensuring that the law enforcement and the prosecution no longer had excessive control over the outcome of criminal proceedings, they only served to exacerbate the need for a guilty plea to foreclose any review by appellate courts and ensure guilty parties were not let off on technicalities. For the defendants, the procedural developments brought about by the ‘due process’ revolution greatly favoured their position at the plea bargaining table. These reforms became the leverage that they would use to maximize on the concessions that they would demand from the prosecution (Alschuler, 1979).

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Moreover, the prosecution would be required to devote a considerable amount of resources to litigation, spend a great portion of their time at trial and have to endure the tediousness of post-trial proceedings. The defendants, on the other hand, are likely to accept plea deals as a result of an examination of the seriousness of the crime, existing record of conviction as well as the length of the pretrial detention period (Ulmor & Bradley, 2006). This increasing complexity of the legal system brought about by the procedural reforms of the ‘due process’ revolution only served to augment the pressure to get a guilty plea from a suspect, maximize on the number of convictions and minimize the number of hours and resources that would have to be located to each case.

The absurd complexity of the justice system comes to mind when one thinks of the necessity for plea bargains. It occurs to me that it would be much easier to simplify the process to provide utility rather than have an elaborate, complex, expensive and time-consuming process whose benefits are subject to subversion by practices such as plea bargaining. The safeguards put in place to ensure that due process is carried out in the criminal trial process have only served to shift the focus of trials from the courtroom to corridors and diminish the need for litigation as a means to deliver justice. Gone are the days that the aim of the criminal process was to prove individuals not guilty even those that committed the imbecility of pleading guilty as a form of martyrdom. It is incredible how the spirit of auction has taken over the justice system, with prices of guilty pleas and convictions fluctuating upon age, race, wealth, seriousness of the crime and the complexity that would come with going to trial. We have made the trial process so complex, so tedious and expensive that it has now become imperative to all judicial officials and law enforcement that trial be avoided by all means including through the use of methods that infringe on the individual rights that the justice system is supposed to protect in the first place.

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            Prosecutors have argued that it would be impractical for every indictment to proceed to trial due to the time and resource constraints (Stuntz, 2004). Moreover, the resources that allocated for these trials is in much better use when it is used for programs such as re-entry, probation and parole. However, according to a report by the American law institute, during the infancy of plea bargaining, the number of indictments in the prosecutorial docket actually declined and the number of staff members increased and the attribution of the increase of plea bargaining to the pressures of caseload could not be considered valid (Alschuler, 1979). It simply reflected a change in the habits of the prosecution to methods that ensured the maximization of production with minimal work input.

It would not be accurate to imply that these statistics hold true to date, but as one examines the origins of plea bargaining up to the point that the criminal justice system had to declare it inherent to legal practice, one cannot help but wonder why a practice that was essentially founded on corruption, proliferated by lies, laziness, threats, coercion and intimidation from prosecution and law enforcement is still in existence in a system that is supposed to guarantee justice and protection of the innocent from the destruction that can occur when ignorance and fear are utilized to drive conviction rates while overlooking the rights, immunities and privileges granted to these people by the constitution (Alschuler, 1979).  While supporters of plea bargaining continue to insist that the practice guarantees rehabilitation of convicts as they take up responsibility for their crimes, they fail to realized that there is an innocent man convicted out of fear and ignorance and a guilty man undeserving of the leniency that was granted to him and thus empowered to commit similar crimes in the future by the assurance that the consequences will be bearable. The resources that have been channelled to reentry and probation would be unnecessary if the seriousness of the criminal justice system would be restored and remove the encouragement to crime provided by plea bargaining. This would also ensure that the threats that are often used by prosecutors as leverage in negotiations bear little to no weight.

Furthermore, the negotiation process and the leverage possessed by defendants in it seems to rely heavily on race, African Americans are less likely to receive a reduced sentence as compared to their white counterparts. Moreover, prosecutors are less inclined to exercise discretion in a case where a minority member is involved as well as in a case where a public defender is involved (Kelough & Wortley, 2002). This discriminative practice has been brought about by the perfunctory judicial oversight that has been employed on plea bargaining.

Prosecutors are free to use any threat to get a guilty confession out of a suspect including threats to family members as well as bringing more serious charges on the subject. In fact, court decisions have given prosecutors precedent to threaten suspects and instill fear as was the case in Bordenkircher v Hayes where the defendant rejected an offer for a five year sentence in exchange for a guilty plea and the prosecutor exercised his threat to return to the grand jury and obtain an indictment under the Kentucky Habitual Criminal Act that would result in a life sentence (Alschuler, 1979).  From this decision when forging an 88 dollar check amounted to a five-year sentence and deciding to go to trial amounted to a life sentence, it is clear how unfavourable it would be for anyone who desires to go to trial to do so in his right mind.

Defendants would be better off without a practice that defeats the whole purpose of having a criminal justice system in the first place, gives too much discretion to a few individuals, allows the utilization of all manner of threats and coercion to solicit guilty pleas, provides a platform for the execution of harsh punishments upon individuals who invoke their right to go to trial and allows prosecutors who negate their responsibility of gathering conclusive evidence to convict to still enjoy incredible success in office. Without this practice, prosecutors would have to ensure that they have strong evidence to convict a suspect in order to minimize wastage of resources, the number of chronic offenders who receive lenient punishment would be reduced as well as the number of economically incapacitated innocent defendants who plead guilty to avoid the costs of going to trial.

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In spite of the justified objections to this process, it is so entrenched in the justice system that it cannot be abolished in any way and the consequences for its abolishment would be a stagnation of the functions criminal justice system. However, several reforms need to be put in place before it can be considered a fair or equitable process. The judiciary needs to exercise more oversight into the process, there is a need for boundaries as to the kind of indictments that necessitate a plea bargain and the capacity of prosecutorial discretion needs to be curtailed to certain extents. Moreover, judges and defence attorneys need to be involved in the negotiation process and all bargains need to be officially recorded to create more transparency.

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