Criminal Courts 65 multiple choice assignment, due June 21.
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Step 11
Plea Bargaining
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In the last chapter, we examined bail and its use to release defendants before trial. We also examined how bail (or the inability to make bail) can affect individual defendants’ access to justice. In this chapter, we move to the next step, plea bar- gaining. Technically, plea-bargain negotiations may occur at any stage in the trial process, and they often follow pre-trial motions aimed at discovery (e.g., requests for statements made by the defendant to police), dismissal of charges, or exclusion of evidence. Once the rulings have been issued on pre-trial motions, the attorneys for the two sides are better able to assess their cases and their possible need to engage in plea bargaining.
Plea bargains are estimated to occur in some 90 percent of criminal cases in the United States (e.g., Miller, McDonald and Cramer, 1978, p. 17). In 1996, 91 per- cent of all felony convictions in the state courts were disposed of through guilty pleas (Brown, Langan, and Levin, 1999, p. 7; Maguire and Pastore, 1999, p. 432, Table 5.42). Although not all guilty pleas are the result of formal bargains, many are, and those that do not follow negotiations often involve some sort of leniency expected by the defense.
Despite their frequent use, plea bargains are one of the most controversial issues in the justice system. The public abhors them, but the justice system appears to embrace them. Editorial after editorial condemns their very existence, but plea bargains are still firmly ensconced in American justice. Plea bargains are defined by the public as a “soft on crime” policy or proof of laziness by prosecutors, by members of the justice system as a way to deal with crushing workloads and vague concepts of justice and fairness, and by defendants as a way to fashion more palat- able sanctions for their actions. As defined by Black’s Law Dictionary, the leading law dictionary, plea bargaining is:
The process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge (Black, 1991, p. 798).
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This definition illustrates the process in formal plea bargaining, which may involve detailed negotiations in which both sides in a case haggle back and forth, or the bar- gains may involve offers that are simply accepted or rejected by the other side. For- mal bargains, called explicit plea bargains, are those in which some concession has been granted to the defendant in exchange for his or her agreement to plead guilty (Weninger, 1987, p. 280). This type of bargain will be discussed at length in this chapter. The second category of negotiations, implicit plea bargains, involve no direct promises of leniency. Although there is no “explicit” agreement entered into by the prosecution, there is still pressure on the defendant to plead guilty in exchange for ambiguous hopes of leniency (Guidorizzi, 1998, p. 756).
The United States is not alone in its use of plea bargaining. Many countries have some form of “abbreviated” approach for routine cases, including Scandi- navia, West Germany, and several other European countries (Felstiner, 1978, p. 309). Similar to the United States, some 85 percent of British defendants plead guilty, and “informal plea negotiation” is common in England (Baldwin and McConville, 1978, pp. 287, 292).
TYPES OF PLEA BARGAINS
There are three main categories of plea bargains. Each type involves sentence reductions, but those reductions are achieved in very different ways. One common
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A group of federal attorneys discuss their cases. It is in informal sessions such as these that plea bar- gains are wrought. Sometimes the product of hallway encounters, plea bargains are typically initiated by defense attorneys and involve some sort of concession by the prosecutor in exchange for a guilty plea. Though plea bargains are subject to judicial review, they are seldom rejected, meaning that American justice depends heavily on negotiation between attorneys. SOURCE: Library of Congress, Prints & Photographs Division, FSA-OWI Collection, LC-USW3-030791-D DLC, Marjory Collins, photographer.
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type is charge bargaining, in which a defendant pleads guilty in exchange for a reduction in the severity of charges he or she faces. In a fairly typical scheme, for example, a Rhode Island defendant faced with felony charges of receiving stolen goods was allowed to avoid a felony proceeding by pleading guilty to misde- meanor charges (Reputed mobster gets probation, 1999). Similarly, cases in which defendants are allowed to plead guilty to necessarily included offenses (e.g., aggra- vated assault) rather than attempted murder charges are examples of charge bar- gains—the actual charges are decreased, thereby reducing the maximum sentence that may be imposed in the case.
Another common type of plea negotiation is sentence bargaining. Those who engage in this type of plea negotiations are promised lighter or alternative sanc- tions in exchange for pleading guilty (e.g., Guidorizzi, 1998, p. 756; Weninger, 1987, p. 280). Sentence bargains are relatively common in homicide cases where defendants will plead guilty to avoid the death penalty or life without parole sen- tences.1 One defendant who was on trial for murder and other serious charges avoided the death penalty when he pleaded guilty in exchange for receiving six consecutive life terms (Ziegler, 1996). A New Mexico woman did the same when she pleaded guilty in exchange for two life terms instead of the death penalty (Her- rera, 1997). Sentence bargains are also employed in cases less serious than homi- cide. When a 1997 California defendant pleaded guilty to a felony drug charge in exchange for a promise that he would serve no more than three years in prison (Drug rap dropped, 1997), he was engaging in sentence bargaining. Even the lower courts have their share of sentence bargains, where defendants agree to plead guilty in exchange for having a few months shaved off of their jail terms, a lower fine, or fewer points added to their driving records (Meyer and Jesilow, 1997, p. 111). Sometimes, prosecutors agree not to make a sentence recommendation, thus leaving the sentence up to the judge (e.g., Santobello v. New York, 1971); the assumption is that the sentencing judge will sentence more leniently than he or she would have in the absence of a guilty plea. However, with sentence recommenda- tion bargains, the defendant has no guarantee that the judge will accept the prose- cutor’s recommendation for a reduced sentence. Therefore, this type of plea bargain is less attractive to defendants. Defendants are also not guaranteed legal relief if their expectations of leniency in exchange for a plea are not met (e.g., Komitee, 1995). In sentence bargaining, it is the sentence itself that is transformed, resulting in a reduced penalty.
The final type of plea negotiation is count bargaining, in which the number of charges is reduced. Instead of being charged with three separate counts of drunk driv- ing in one night, for example, one California defendant was allowed to plead guilty to just one (Meyer, 1993). Similarly, some defendants will have one or more charges dropped in exchange for pleading guilty to the remaining offenses. Count bargaining is less common than the other two forms (Weninger, 1987, p. 280), in part because it is limited to those offenders who amass multiple charges. Although it simplifies mat-
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ters, a defendant’s charges need not be identical for count bargaining to occur. Any charge(s) may be dropped by the prosecutor in exchange for a guilty plea on the remaining charge(s). In count bargaining, the actual number of charges is decreased, thereby reducing the maximum sentence that may be imposed in the case.
The defense, of course, hopes that the end result of any plea bargain is a reduced penalty. In general, scholars have noted that those who plead guilty receive more lenient sentences than their counterparts who go to trial (Acevedo, 1995, p. 997; Guidorizzi, 1998, p. 775; Heumann, 1978; Weninger, 1987, p. 295). According to government statistics, the average sentence following a felony con- viction by jury trial was 150 months in 1996, compared to only 54 months for defendants who pled guilty (Levin, Langan, and Brown, 2000, p. 39, see Box 11.1 for the sentences broken down by offense). Sometimes, lenient penalties are reserved for those who plead guilty; informal courthouse norms in one jurisdiction stated that only defendants who had pled guilty could be eligible for probation, meaning that those who insisted on their day in court often served their day in jail, too (Neubauer, 1974, p. 240).
Because of the greater interest accorded to them by the public, murderers deserve special mention. Murderers convicted by juries are more likely than those who plead guilty to receive death sentences or life sentences compared to more lenient sentences. In 1996, 5 percent of jury trials for murder ended with death sen- tences and an additional 43 percent ended with life sentences, whereas only 3 per- cent of those who pled guilty received death sentences and only 14 percent got life terms; the remaining 86 percent of defendants who pled guilty received less serious penalties (Brown, Langan, and Levin, 1999, p. 8).
Ironically, the sentences imposed in individual plea bargains sometimes dif- fer little from what defendants would receive after trial, especially when one con- siders that the statistical differences mentioned above may be attributable to defendants refusing bargains that call for harsh penalties but receiving those severe sentences after conviction (this would inflate the severity of sentences imposed after trial when compared with those willingly accepted by defendants who plea bargained). In count bargains, the dropping of charges may not reduce the sentence at all; the prosecution gives up “very little” since most sentences are served con- currently (Neubauer, 1974, p. 203). Receiving concurrent terms means that mul- tiple sentences are served at the same time, so the offender spends only the longest term in detention; consecutive terms, on the other hand, means that the offender must serve the terms one after the other so that when one term is completed the next begins. Receiving a jail term of six months, then, requires the same amount of time behind bars as three concurrent six-month terms. The reality of concurrent sentences led one prosecutor to comment, after agreeing to dismiss several misde- meanor counts against an accused sex offender, “If we had gone to trial and he had been convicted of all the charges he would have faced 64 years in prison. He still faces 64 years in prison” (Callahan, 1996, p. B1).
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BOX 11.1
Average Felony Sentence Lengths
As you look over the following table, compare the sentences imposed for guilty pleas to other types of “convictions.” Generally, which type of conviction yields the highest average sentence? For which offense(s) is the difference between guilty pleas and bench or jury trials the greatest? For which offenses is the difference the least? Are there any offenses for which pleading guilty yields a higher average sentence than either bench or jury trial? What factors do you feel could account for the differences shown in this table?
Average Felony Sentence Length in State Courts, by the Type of Conviction, Type of Sentence Imposed, and Offense, 1996
Maximum sentence length (in months) for convictions by —
Trial
Most serious Total Total Trial Jury Bench Guilty plea
conviction offense Mean Median Mean Median Mean Median Mean Median Mean Median
SENTENCES TO PRISON All offenses 61 mo 36 mo 107 mo 60 mo 150 mo 120 mo 70 mo 48 mo 54 mo 36 mo
Violent offenses 104 mo 68 mo 170 mo 139 mo 205 mo 180 mo 116 mo 84 mo 86 mo 60 mo Murdera 237 300 314 720 332 ** 258 240 191 182 Sexual assaultb 117 72 170 120 215 180 83 60 100 70 Robbery 102 72 158 120 180 144 128 120 90 70 Aggravated assault 70 48 118 72 144 96 89 60 59 37 Other violentc 57 36 92 60 124 72 51 36 48 36
Property offenses 48 mo 36 mo 69 mo 48 mo 93 mo 66 mo 58 mo 48 mo 46 mo 36 mo Burglary 61 48 92 60 112 84 74 60 57 46 Larcenyd 39 29 50 36 65 48 47 36 38 25 Fraude 39 29 46 32 65 60 46 33 39 28
Drug offenses 50 mo 36 mo 78 mo 48 mo 100 mo 70 mo 61 mo 43 mo 46 mo 36 mo Possession 36 24 49 36 79 48 35 24 35 24 Trafficking 55 36 87 60 106 72 72 60 50 36
Weapons offenses 40 mo 24 mo 66 mo 40 mo 91 mo 60 mo 46 mo 36 mo 36 mo 24 mo
Other offensesf 41 mo 36 mo 51 mo 36 mo 83 mo 48 mo 34 mo 24 mo 40 mo 36 mo
SENTENCES TO JAIL All offenses 6 mo 6 mo 8 mo 6 mo 7 mo 6 mo 8 mo 6 mo 6 mo 6 mo
Violent offenses 7 mo 6 mo 9 mo 6 mo 9 mo 6 mo 10 mo 9 mo 7 mo 6 mo Murdera 9 12 9 6 9 6 8 9 9 12 Sexual assaultb 8 6 11 12 12 12 10 12 7 6 Robbery 10 9 14 12 10 12 17 12 10 9
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Maximum sentence length (in months) for convictions by —
Trial
Most serious Total Total Trial Jury Bench Guilty plea
conviction offense Mean Median Mean Median Mean Median Mean Median Mean Median
Aggravated assault 7 6 8 6 8 6 9 6 7 6 Other violentc 6 6 6 6 5 4 8 6 6 6
Property offenses 6 mo 6 mo 8 mo 6 mo 6 mo 6 mo 9 mo 6 mo 6 mo 6 mo Burglary 7 6 8 6 5 2 10 11 7 6 Larcenyd 6 5 8 6 6 6 8 6 6 5 Fraude 5 5 9 6 6 6 10 12 5 5
Drug offenses 6 mo 6 mo 8 mo 6 mo 7 mo 8 mo 8 mo 6 mo 6 mo 6 mo Possession 6 6 7 6 6 6 7 6 6 6 Trafficking 6 6 9 8 8 8 9 6 6 6
Weapons offenses 6 mo 6 mo 7 mo 6 mo 7 mo 6 mo 6 mo 4 mo 6 mo 5 mo
Other offensesf 6 mo 6 mo 7 mo 6 mo 7 mo 6 mo 7 mo 3 mo 6 mo 6 mo
SENTENCES TO PROBATION All offenses 41 mo 36 mo 48 mo 60 mo 50 mo 54 mo 48 mo 60 mo 41 mo 36 mo
Violent offenses 48 mo 36 mo 50 mo 60 mo 58 mo 60 mo 46 mo 60 mo 48 mo 36 mo Murdera 71 60 243 360 281 360 60 60 68 60 Sexual assaultb 66 60 52 60 61 60 50 60 67 60 Robbery 52 60 58 60 74 60 55 60 52 60 Aggravated assault 41 36 45 48 49 54 38 36 41 36 Other violentc 43 36 50 60 36 36 51 60 42 36
Property offenses 40 mo 36 mo 46 mo 60 mo 44 mo 48 mo 47 mo 60 mo 40 mo 36 mo Burglary 45 36 45 48 43 60 50 60 45 36 Larcenyd 39 36 48 60 40 36 48 60 38 36 Fraude 39 36 45 60 52 60 45 60 39 36
Drug offenses 42 mo 36 mo 49 mo 60 mo 56 mo 60 mo 49 mo 60 mo 41 mo 36 mo Possession 36 36 44 60 50 60 43 48 36 24 Trafficking 45 36 54 60 57 60 56 60 45 36
Weapons offenses 34 mo 25 mo 36 mo 36 mo 41 mo 36 mo 34 mo 24 mo 34 mo 24 mo
Other offensesf 40 mo 36 mo 49 mo 60 mo 41 mo 36 mo 51 mo 60 mo 40 mo 36 mo
See note on tables 1.1, 1.2, and 1.3. Some estimates in this table are based on as few as 1 case and are therefore unreliable. **Because the median includes felons sentenced to life in prison, the median sentence to prison is greater than 50 years. aIncludes nonnegligent manslaughter. bIncludes rape. cIncludes offenses such as negligent manslaughter and kidnaping. dIncludes motor vehicle theft. eIncludes forgery and embezzlement. fComposed of nonviolent offenses such as receiving stolen property and vandalism. Source: Levin, Langan, and Brown, 2000, pp. 39–40.
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In addition, some research suggests that sentences are based on the severity of offenders’ actions rather than the specific charges for which they are convicted. Thomas Uhlman (1977, p. 36; 1979, p. 91), for example, found that defendants who were sentenced following charge reductions were more likely to receive sentences at the high end of the range for those charges, whereas defendants who had been convicted on the original (and more serious) charges received sentences that were lower in the range. In the end, the terms ended up being fairly close, leading him to conclude that “plea ‘bargains’. . . may be more apparent than real” (Uhlman, 1977, p. 36). Other researchers have noted similar phenomena, with sentences being raised so that they reflect the gravity of the actual offenses rather than simply the label placed upon them by bargaining prosecutors (Ferdinand, 1992, p. 110; Math- eny, 1980). See Box 11.2 for an example illustrating how this may occur.
In some cases, bargains reflect the legal reality or worth of a case. One scholar noted that grand juries in New York during the early 1900s issued indict- ments for murder “in almost every” homicide case in the event that evidence showed up at trial that justified the more serious charges (Train, 1922, p. 224). If prosecutors did not reduce the charges where appropriate, serious injustices would undoubtedly result. Even today, some prosecutors overcharge and reduce the charges after reviewing the case and meeting with defense attorneys to bargain (Holten and Lamar, 1991, p. 208; Lindquist, 1988, p. 171).
HISTORY OF PLEA BARGAINING
The history of plea bargaining is one of the least documented elements in the crim- inal justice system. One reason for plea bargaining’s obscure past may be that bar- gaining was considered inappropriate by the judiciary until the late 1960s.
One of the earliest documented plea bargains may have taken place in 1431, when Joan of Arc was offered the opportunity to save herself from being burned at the stake as a heretic by recanting her statements that she had heard the voices of three saints sent by God and was acting on holy directions to help free France from the English (Sackville-West, 1936, p. 330). In this case, admitting the crime of heresy temporarily spared her from the death penalty.2
Another early form of plea bargaining took place during the 1692 witch trials in Salem, Massachusetts. In those cases, accused witches were told if they con- fessed they would live, but if they failed to do so, they would be hung; the judges did this both to encourage confessions and because they wanted the “admitted” witches to testify against others in an attempt to uncover more witches (Hill, 1995, p. 137). Conceding that they had practiced witchcraft spared many accused witches from execution; in fact, no accused witch who confessed was put to death.3 Those who refused to plead guilty met with less savory fates; nineteen individuals were hung and one was pressed to death (Giles Corey, who was mentioned in Step 4).
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In retrospect, the Salem witch trials illustrate one of the harshest criticisms of plea bargains—that they sometimes induce the innocent to plead guilty.
A third example of an early plea bargain appears to have occurred in England in the 1704 case of Daniel Defoe. Defoe pled guilty “on the promise of pardon secretly given to him” to the charge of writing a “scandalous and seditious pam- phlet” (Andrews, 1890/1991, p. 99). It is important to remember that such a charge was considered quite serious at the time. Defoe was fined, ordered to make three appearances in the pillory, and incarcerated “during the Queen’s pleasure”; after a year in prison, the Queen sent Defoe’s wife the money to pay the fine (Andrews, 1890/1991: pp. 100–101). It is unlikely that any formal written agreement was drawn up, but this case appears to illustrate an early plea bargain. At the very least, the defendant pled guilty because he expected leniency in exchange for his plea, as per the secret promise.
Although these three examples seem to illustrate plea bargains, they are very different from the plea bargains that take place today. One similarity that ties these three examples together is that, in each case, the courts valued a confession above punishment. In fact, the courts seemed to value a confession more than a conviction.
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BOX 11.2
How Reduced Charges May Not Necessarily Mean Reduced Sentences
To some, it is difficult to understand how lowering charges does not always mean more lenient sentence outcomes. To illustrate this concept, let us consider a hypothetical burglar’s sentence in New Jersey. If a weapon is used in the offense or an injury occurs, burglary is a second-degree felony in New Jersey (which carries a term of five to ten years under New Jersey guidelines), otherwise burglary is a third-degree felony (which carries a term of three to five years). Assume Joe Burglar successfully bargains to have his burglary bumped down a notch (i.e., the prosecu- tor agrees to “ignore” the presence of a weapon or injury and charges Joe with a run-of-the-mill burglary).
If Joe is sentenced on the reduced charges, the sentencing judge, after reviewing the case, may give him a sentence near the maximum for the charge, in this case, five years in prison. The judge may do this because Joe’s actions are serious for a third-degree crime.
If Joe is sentenced on the more serious charges, however, the sentencing judge may review the case and give him a sentence toward the lower end of the sentencing range for the charge, in this case, five years in prison. The judge may do this because, when compared to other second-degree offenders, Joe’s actions are less serious.
Either way, Joe ends up spending five years in prison. His record, however, shows a con- viction on the reduced charge and there is a chance that the outcome will be more lenient than the maximum term. Most important, from Joe’s point of view, is that he has reduced the maxi- mum sentence he can receive from the judge. And, we do know that certainty is a value held in great regard by defendants facing sentences.
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In the first two cases, which were heard in ecclesiastical courts (i.e., church courts) rather than criminal courts, confessions legitimized the trials by showing the public that the accuseds’ crimes were real rather than fiction. In the third case, Defoe admitted that his pamphlets were scandalous and seditious rather than hav- ing any scholarly value. In all three cases, the confessions legitimized the accusa- tions and the courts’ role in prosecuting them. Today’s plea bargains, on the other hand, appear to have developed out of a desire for convictions (due to a systemic pressure to efficiently dispose of cases).
This is not to say that there were no instances of jurisdictions or time periods in which plea bargaining was the norm. One researcher uncovered a curious 1485 English hunting law that stated that defendants who confessed to violating the statute would be fined as misdemeanants, while those who failed to confess would be tried as felons (Langbein, 1974, p. 70); other researchers have found “specific indications” of true plea bargaining in early times (Alschuler, 1978, pp. 221–222), but these examples do not suggest a regular pattern of plea negotiation. It is examples such as these, however, that have led some scholars (e.g., Dash, 1951, p. 396) to assert that plea bargaining was a method used by prosecutors in the seventeenth and eighteenth centuries to reduce the severity of sentences from death to other options, such as transportation to a penal colony.
If they existed at all, plea bargains were rare in early America. In 1804, in response to a young man’s guilty plea to murder and rape, the trial judge was so surprised that he informed the defendant that he “was under no legal or moral obli- gation to plead guilty” and that he had the right to deny the charges and force the government to prove them, but the defendant insisted on pleading guilty (Com- monwealth v. Battis, 1804, pp. 95–96). This led the judge to inform the defendant that he would be given some time to think about his actions and to direct the court clerk not to record the guilty pleas. Later that afternoon, the defendant again pled guilty when he was brought into court, leading the judge to question those who had contact with the defendant:
Upon which the Court examined, under oath, the sheriff, the jailer, and the justice, (before whom the examination of the prisoner was had previous to his commitment) as to the sanity of the prisoner; and whether there had not been tampering with him, either by promises, persuasions, or hopes of pardon, if he would plead guilty. On a very full inquiry, nothing of that kind appearing, the prisoner was again remanded, and the clerk directed to record the plea on both indictments. (Commonwealth v. Battis, 1804, p. 96)4
By the 1830s, however, plea bargains had become routine in Boston, Massachu- setts. As early as 1832, public ordinance violators could expect more lenient sen- tences in the city’s police court (i.e., a misdemeanor level court) if they pled guilty (Ferdinand, 1992, p. 89). After the defendants entered “not guilty” pleas, whoever prosecuted the cases could begin negotiations, offering to drop some of the charges and impose minor fines for the remainder of the charges in exchange for guilty
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pleas (Ferdinand, 1992, p. 94). The rate of police court guilty pleas more than quadrupled between 1834 and 1844, increasing from 8.1 percent of the cases to 35.1 percent (Ferdinand, 1992, p. 89).
From public ordinances, the practice spread to higher courts, including those that handled misdemeanors and felonies (Ferdinand, 1992, p. 95). Part of the popu- larity of plea bargaining in the general jurisdiction courts may have been the rapid increases in caseload, from some 300 cases a year to 1,500 cases a year by 1850 (Ferdinand, 1992, pp. 99, 101). It became normal for defendants to plead not guilty, then to switch their plea to guilty in exchange for the dismissal of charges or other “suitable agreement[s]” arranged with the prosecutor (Ferdinand, 1992, p. 101).
It is important to note that the first negotiated pleas in Boston were for offenses that did not have a clear victim (Ferdinand, 1992, p. 93). In victimless cases, such as gambling, the prosecutor does not have to factor in victim concerns, including the victim’s safety or sentence preferences. Instead, criminal justice offi- cials are the complainants, and their interests are more easily accommodated by plea bargaining. Haller (1978, p. 274) noted that the development of professional police and prosecutors’ offices in the mid-1800s meant that responsibilities such as issuing arrest warrants and charging defendants were taken away from the courts, which further facilitated the growth of plea bargaining as individuals who were not trained in the law began to look for ways to handle their caseloads. From its humble beginnings as a way to dispose of mala prohibita crimes that were illegal only because they were legally prohibited (e.g., prostitution or public drunken- ness), plea bargaining expanded to encompass mala in se crimes in which the harm and victim are more clear (e.g., battery or theft).
Even if they were routine before the Civil War, it was only after that war that cases in which plea bargains had been negotiated began to appear in the appellate court docket (Alschuler, 1978, pp. 223–224). No longer confined to the trial courts, plea bargains needed to be considered at this higher level of review. The appellate courts reacted with shock and began to decry the practice whenever given the opportunity.
By 1878, plea bargaining had become such an issue that one state’s supreme court reversed a conviction because the trial court had not made an independent examination of the case facts before accepting a defendant’s guilty plea (Edwards v. People, 1878). Apparently, the state legislature had enacted a statute specifically directing judges to vacate guilty pleas they felt were erroneous (i.e., that the defen- dant was factually innocent of the crime) or the product of “undue influence” (Edwards v. People, 1878, p. 761). Because the text of the Michigan Supreme Court decision illustrates so well the fears held by some that plea bargains were perverting the criminal justice system, a few excerpts are presented in Box 11.3. From those excerpts, one can easily see that the legislature sought to address two primary criti- cisms of plea bargaining: (1) that innocent defendants will be induced to plead guilty and (2) that sentences will not adequately reflect the crimes committed by offenders.
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One legal historian notes that plea bargains in the nineteenth century differed from their current counterparts in that the majority of historic bargains involved reducing charges, whereas current bargains are more likely to consist of dropping one or more of the defendant’s charges (Friedman, 1978, p. 251). He cites the example of an Alameda County, California, man who was charged in 1880 with embezzling $52.50. At first, he pled “not guilty,” but he changed his plea to
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BOX 11.3
A Few Excerpts from Edwards v. People (1878)
The Legislature of 1875, having in some way had their attention called to serious abuses caused by procuring prisoners to plead guilty when a fair trial might show they were not guilty, or might show other facts important to be known, passed a very plain and significant statute designed for the protection of prisoners and of the public. It was thereby enacted as follows:
That whenever any person shall plead guilty to an information filed against him in any circuit court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied, after such investigation as he may deem necessary for that purpose, respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered, and order a trial of the issue thus formed. (pp. 761–762)
It is contrary to public policy to have any one imprisoned who is not clearly guilty of the precise crime charged against him, and it is equally contrary to policy and justice to punish any one without some regard to the circumstances of the case. By confining this statute to informa- tions and not extending it to indictments,5 it is easy to see that the Legislature thought there was danger that prosecuting attorneys, either to save themselves trouble, to save money to the county, or to serve some other improper purpose, would procure prisoners to plead guilty by assurances they have no power to make of influence in lowering the sentence, or by bringing some other unjust influence to bear on them. It is to be presumed they had evidence before them of serious abuses under the information system which in their judgment required checking by stringent measures.
Every one familiar with the course of criminal justice knows that those officers exercise very extensive and dangerous powers, that in the hands of an arbitrary or corrupt man are capable of great abuse. And unless the general impression is wrong, great abuses have been practiced by this very device of inveigling prisoners into confessions of guilt which could not be lawfully made out against them, and deceiving them concerning the precise character of the charges which they are led to confess. And it has also happened, as is generally believed, that by receiv- ing a plea of guilty from a person whose offense is not aggravated, worse criminals who have used him for their purposes remain unpunished, because the facts which would convict them have not been brought out. (pp. 762–763)
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“guilty” after the prosecutor reduced the charge to theft of less than $50.00. Another defendant pled “not guilty” to charges of grand larceny, but also changed his plea when the charges were reduced to petty larceny. It appears that plea bar- gains were possible for serious property crimes in Alameda County, even in the nineteenth century.
By 1900, the majority of cases in New York County, New York, were dis- posed of by guilty pleas. One scholar tracked guilty pleas for the county and found that between 77 percent and 83 percent of defendants pled guilty between the years of 1900 and 1907 (Train, 1922, p. 226). And, the pleas were not always due to defendants’ spontaneous decisions to plead guilty. Train (1922) noted that some court officials negotiated with defendants for pleas and built reputations based on their ability to do so:
Court officers often win fame in accordance with the ability as ‘plea getters.’. . . Accordingly each morning some of them visit the pens on the floor below the court-room and negotiate with the prisoners for pleas. The writer suspects that the assistant in charge of the Part is usually depicted as a fierce and relentless prosecutor and the jury as a hardened, heartless crew who would convict their own mothers on the slightest pretext. (p. 223)
By the 1920s, plea bargains had become standard practice in other jurisdictions, but they still were not fully endorsed by appellate courts. Two scholars in that decade, Justin Miller and Raymond Moley, each published articles decrying the practice. According to statistics uncovered by the two, plea bargains were everyday routine nearly everywhere. In Cook County, Illinois, for example, 96 percent of felony prosecutions in 1926 resulted in guilty pleas (Moley, 1928, p. 97). In fact, of twenty-four jurisdictions for which Moley was able to obtain data, five (St. Paul, Syracuse, Omaha, Yonkers, and Minneapolis) had guilty plea rates of 90 percent or higher, six had rates between 80 percent and 89 percent, ten had rates between 70 percent and 79 percent, and only three had rates below 69 percent (Moley, 1928, p. 105). Although Moley was unable to ascertain exactly how many of the guilty pleas resulted from plea bargaining, he concluded that giving prosecutors discre- tion “has made it possible for the practice of ‘bargaining for pleas’ to assume very large proportions in the administration of criminal justice, particularly in the large cities” (Moley, 1928, p. 109).
Moley (1928, p. 103) referred to the process as “compromising” of cases or “bargaining for pleas” and likened the practice to baseball players’ batting aver- ages. Possibly because of his effective analogy, modern court scholars talk about prosecutors’ “batting averages” as a driving force behind the prevalence of plea bargaining. See Box 11.4 for some other insights provided by Moley.
In his article, Miller (1927) spent less time documenting the existence of plea bargaining, instead focusing on the process itself and the motivations behind it. He noticed that judges varied in their amenability to bargains; some refused to allow them in their courts, others suggested bargaining to the attorneys, and a few
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BOX 11.4
Moley’s Wisdom and Insight Regarding Plea Bargains
As a quick perusal of the following quotes readily shows, Moley’s insight regarding plea bar- gaining demonstrates the nature of the practice, even as it is practiced today.
Lists gains to the prosecutor and uses the phrase “batting average”:
[There is no] onerous and protracted [trial, no risk of loss at trial, no risk of having to oppose an appeal, bargains count as convictions] and when he goes before the voters for re-election he can talk in large terms about securing convictions when, in reality, these “convictions” include all sorts of compromises. The district attorney’s “record,” as he usually interprets it to the public, rests upon the ratio of convictions to acquittals and means as much to him as a batting average means to a baseball player. (p. 103)
Even mandatory sentencing laws can be circumvented:
Here, then is exactly what the operation of the Baumes Law [a mandatory sentenc- ing scheme] in the largest city of the United States finally came down to. It indicates that in cases where the evidence was fairly conclusive and the accused persons were willing to plead guilty, the discretion of the district attorney, with the consent of the court, permitted half of the cases in which guilt was established to escape the legis- lators’ well made plans. (p. 113)
Bargains represent perverse logic:
Either a person is guilty of the crime charged, or he is not. It does not satisfy the requirements of justice to punish him for one crime because it is impossible to pun- ish him for the correct one. (p. 124)
The importance placed on prosecutors’ records facilitates bargaining:
With present methods of establishing his “efficiency” before the public, he is able through compromising large numbers of cases to appear to be getting large num- bers of convictions when, in fact, his convictions are to a large extent merely theo- retical. Moreover, it is easy for the prosecutor to avoid labor in the way merely for the purpose of expending his best energies upon sensational and politically advan- tageous exploits in court. (p. 125)
Plea bargaining is not rational and its goals are not justice:
It is in its methods and its implications a process of driving a bargain—a game of wits. It is psychologically more akin to a game of poker than to a process of jus- tice. . . . It is not a search for truth; it is an attempt to get as much from an unwilling giver as is possible. (p. 125)
Source: R. Moley, 1928, “The Vanishing Jury,” Southern California Law Review, 2: 98–127.
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“bargain[ed] openly, in court, with the accused person” (Miller, 1927, p. 10). He felt some of the blame for the practice lay with increases in caseload because of the “prolific creation of new crimes” (i.e., the outlawing of more and more behaviors by the legislature). More recently, Mather (1978, p. 283) noted that the creation of new laws during Miller’s day affected caseloads in two ways; increases in case- loads were obvious, but the creation of new laws also transformed caseloads because the new cases were of a “distinctly different type.” The new laws (e.g., Prohibition laws) did not enjoy total support by the public, so juries sometimes refused to convict those accused of breaking them. This reality made prosecutors even more inclined to bargain (Haller, 1978, p. 273; Mather, 1978, p. 283).
Other legal historians have attempted to explain the evolution of plea bar- gaining in terms of caseload differences. Langbein (1978, p. 263) noted that Old Bailey (a famous court in England) heard a dozen cases a day in the 1730s com- pared to current estimates of several days per case. Why the huge increase in pro- cessing time? Langbein argues that the shift lies in the transformation of legal procedures. In the 1700s, the rules of evidence were far less formal than current ones, and there were no attorneys, which meant there were no motions or extended cross-examination sessions (Langbein, 1978, p. 263). In other words, the number of trials is not as important as the time consumed by each one. It isn’t just that there are more trials now than in the past; indeed, the trials of yesterday were very differ- ent from today’s notion of trials and due process.
It is also important to acknowledge the differences between methods used to determine guilt in earlier times and those used today. Looking back to the early his- tory of courts (see Step 4), trial by ordeal and battle now seem like little more than legally sanctioned guessing games but were once considered to be effective meth- ods to determine the guilt of accused lawbreakers. There were no video surveillance cameras to capture incriminating footage of robberies, no DNA tests, no hair analy- sis, and no expert scientists whose abilities to unravel complex mysteries dazzle even prime-time television audiences. Instead, early courts relied on divine inter- vention, and later courts relied on jury trials in which both sides presented evidence to support their claims about what happened on some night in question. The ration- ale behind the adversarial process was that the truth would emerge through careful analysis of the evidence presented by the defense and prosecution. Current scientific analysis, on the other hand, reduces at least some of the doubt regarding the guilt of the accused. This realization led one distinguished legal historian (Friedman, 1978, p. 257) to comment: “In a system run by amateurs . . . without technology or police science—no fingerprints, blood tests, ballistics reports—the classical trial might be as good a way as any to filter out the innocent from the guilty.”
Regardless of how plea bargaining got its foot in the door, it is clear that it has been a regular part of American criminal justice since the nineteenth century, despite not being recognized as “legal” by the appellate courts. Even until the 1960s, plea bargains were still treated as the justice system’s “dirty little secret.”
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Defendants who had bargained were not allowed to acknowledge this in court; instead, they were expected to be “thespians who would affirm in court, before attorneys and judges who knew better, that guilty pleas were wholly voluntary, the consequences of contrition, and not induced by assurances of leniency” (Cohen and Tonry, 1983, p. 308). In 1967, an important report, The Challenge of Crime in a Free Society documented the presence of plea bargaining and recommended bringing it out of the shadows and into open court (President’s Commission on Law Enforcement and Administration of Justice, 1967/1968, pp. 333–338). Partly as a result of this report, plea bargaining is now officially recognized and defen- dants no longer have to put on fraudulent performances in court. In fact, plea bar- gaining has its own case law, as we will see later in this chapter.
EFFECTS OF PLEA BARGAINING ON COURTROOM WORK GROUPS
There is no doubt that plea bargaining plays a central role in the American justice system. That some 90 percent of defendants plead guilty means that even a reduc- tion of 10 percent in that number could double the number of trials and signifi- cantly overtax the court system. For this reason, and others, the courtroom work group views plea negotiation as attractive, and as a team fashions the sentences imposed on the majority of defendants. One courts scholar summed up the impor- tance of bargains, calling them “the most critical stage in the criminal justice sys- tem. [They are] the most important determinant of who gets what from the criminal justice process” (Neubauer, 1974, p. 195).
Plea bargaining is the principal mechanism that allows judges, prosecutors, and defense attorneys to cooperate and work together toward their individual and collective goals (Blumberg, 1967; Eisenstein and Jacob, 1977; Nardulli, 1978; Weninger 1987, p. 266). Courts observer and scholar Maureen Mileski (1971) explained the importance of cooperation for the smooth functioning of the court- room work group:
The prosecutor balances his need to prosecute cases against his need to maintain good relations with the judge, public defender, and many other attorneys who frequently take cases to court; all are members of the “team” that maintains orderly operations of the court. They share a worksite. Together they can make their worksite a fractious, turbulent one or an orderly and predictable one. Though the interest of some of the parties are formally at odds, in operation they share common interests. A certain level of cooperation between them [develops]. (p. 488)
To understand why courtroom work groups rely so heavily on plea bargaining, it is important to understand how each member of the courtroom work group benefits from them. The primary motivation is that bargains represent a “done deal”; there
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is no risk of loss at trial for either prosecution or defense. In cases in which there is no “smoking gun” evidence, bargains may be a way for both sides to minimize their losses through negotiations. All members of the courtroom work group bene- fit in some way from plea bargains. See Box 11.5 for a writeup about a courtroom work group that emphasized cooperation and excluded those who failed to partici- pate with the other members of the courtroom work group.
Plea bargains are a major boon to prosecutors because they allow them to improve their “batting averages” (Blumberg, 1967, p. 179). In a system that places more value on convictions than actual sentences, prosecutors can easily view plea bargaining as a way to increase their conviction rates (Moley, 1928, p. 103; Kunkle, 1989). Through plea bargaining prosecutors can avoid trials that, in addi- tion to consuming great amounts of time and requiring much work, can result in acquittals (Blumberg, 1967, p. 179). Of course, even the most politically insulated
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BOX 11.5
The Value of Cooperation to the Courtroom Work Group
One of our students, Constance O’Connor, was invited by the judge she was observing to attend normally private in-chambers sessions during which she observed and interviewed members of the courtroom work group. Her findings are below. As you read them, consider how this courtroom work group would treat newcomers, especially those who failed to cooperate with the others:
All of the subjects [I] interviewed stressed that with group cooperation, the system works efficiently and smoothly. There is a continuing need to work together with required reasonableness that helps maintain the group’s cohesion. Mutual under- standing, trust, and a reciprocal give and take are the necessary components of the work group if it is to operate at full efficiency. Cooperation is the cornerstone of the system functioning at its maximum capabilities.
According to those involved in this work group, without cooperation the system bogs down to the detriment of all. To quote the words of a probation officer that I interviewed, “If someone’s not cooperating with the others, it throws a monkey wrench into the whole thing.” Interestingly, all of the subjects personally felt that a certain type of personality was the biggest obstacle to group cooperation. This per- sonality was variously described as one who is a “stickler for details,” intent upon career advancement often at the expense of others, or just a “plain jerk.” This type of personality does not share the common goals and values of the work group and is predominantly concerned with his individual successes, not the success of the group as a whole. Group cooperation and cohesiveness are not a priority to this type of individual. It was noted by several subjects that this type of individual “doesn’t last long around here.” In fact, it was specifically mentioned that the judge in this work group was especially intolerant of this type of personality and had “gotten rid of anyone who wouldn’t work within her system.”
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prosecutor cannot bargain all cases away, lest he or she incur the wrath of an angry public.
Mileski (1971) noted that both public and private defense attorneys pushed plea bargains as a way to protect the court from defendants’ requests for trials. Since public defenders are part of the criminal justice system, they may decide it is expe- dient or wise to serve the system’s interests rather than those of their clients. Even private attorneys may be swayed to work for the court through preferential schedul- ing of their cases or harsh punishment of their clients who refuse to bargain. Sched- uling preferences allow attorneys to maximize the use of their time, whereas harsh punishment of their clients affects their reputations. Cooperative defense attorneys are able to achieve other rewards, including the granting of continuances to allow for fee collection or the scheduling of cases before a “favorable” judge (Blumberg, 1967, pp. 105, 144). These controlling actions serve to coax defense attorneys to “play the [plea bargain] game in order to get along” (Blumberg, 1967, p. 106).
Defense attorneys can maximize their efficiency and profit through careful use of plea bargaining. Through cooperating with the court, defense attorneys can dispose of cases quickly, an important consideration in that public defenders are part of the bureaucracy and private attorneys are usually paid on a case-by-case basis. Many private attorneys find that plea bargaining is cost-effective because it requires less time and effort than going to trial (Knowles and Prewitt, 1969; Moran and Cooper, 1983, p. 75). In fact, when plea bargaining was banned in Alaska, defense attorneys reported that they had to increase their fees to make up for the additional work they had to do (Rubinstein and White, 1978, p. 371). Sometimes, attorneys discuss the possibility of plea bargaining with a client and “if the defen- dant is amenable to a deal, [they are] hired (in fact) for this purpose rather than as an actual courtroom defense” (Moran and Cooper, 1983, p. 75).
Plea bargaining becomes all the more attractive to defense attorneys when one considers that the majority of defendants are presumed by the courtroom work group to be guilty. Through plea bargaining, defense attorneys are able to counter- act overcharging by prosecutors and get charges reduced to reflect the legal worth of a case (Holten and Lamar, 1991, p. 208; Lindquist, 1988, p. 171). The ability to obtain lenient sentences, or apparently lenient, in the face of overwhelming evi- dence of guilt is another way attorneys can boost their reputations.
Even judges benefit from the process. Plea bargaining allows judges to “avoid the time-consuming, expensive, unpredictable snares and pitfalls of an adversary trial” (Blumberg, 1967, p. 65). The benefit of saved time is obvious, but what “unpredictable snares and pitfalls” could await a judge? Remember that one role of judges is to issue rulings on pre-trial motions and objections during the trial itself. Every ruling is subject to review by a higher court, and judges’ decisions are some- times overturned on appeal, which they dislike (Heumann, 1978, p. 66). Plea bar- gaining avoids this embarrassing possibility. On a similar note, judges also avoid having to make difficult rulings on vague issues that come up during the trial.
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Plea bargains also allow judges to “engage in a social-psychological fantasy” in which the defendant has already admitted his guilt and stands “repentant” before the judge (Blumberg, 1967, p. 65). Some judges place a high value on admissions of culpability, so defendants who plead guilty may receive more lenient sentences. One judge told a defendant who had pled guilty that he was giving him a lenient sentence because he did not get on the witness stand and tell “some perjured tale”; the same judge gave one felon probation after he pled guilty, but imposed a five- year prison term on his co-defendant who refused to admit his guilt and insisted on going to trial (Friedman, 1978, pp. 253–254). Admitting one’s culpability could make a huge difference in the sentence outcome when appearing before that judge, and it sometimes affects the sentences in other judges’ courtrooms, too.
Finally, plea bargaining allows judges to avoid shouldering the burden of sen- tencing alone. As we read in Step 7, judges often feel underprepared to sentence the offenders who appear before them. Plea bargains eliminate this responsibility because they typically involve ratifying a sentence deal that has already been worked out in advance. In addition, judges need not worry that the sentences they impose during plea bargains will be held against them. When Alaska banned plea bargains, for example, sentences became more severe, but not because bargains had been used to gut sanctions; instead, judges could no longer blame unpopular sentences on prosecutors, so they increased the overall severity of sentences in order to appease the public (Rubinstein and White, 1978, p. 378). Transferring the blame for sentences to plea bargaining may be even more appealing to judges who wish to keep their positions during upcoming elections.
Although they are not members of the courtroom work group, defendants also benefit from plea bargains. They are able both to limit the severity of the sanctions they face and to add a level of certainty to the criminal justice process. For guilty individuals, the threat of going to trial is sometimes used to coax prosecutors into making “sweetheart deals” (Weninger, 1987, p. 270), but even innocent defendants sometimes plead guilty because they are overwhelmed by the evidence against them (or what the police and prosecution say is evidence against them) or by the justice system itself. Sometimes, plea bargains are too good for even innocent defendants to pass up, especially if they have been held in jail before trial. After spending ten months in custody awaiting trial, for example, one defendant insisted he was inno- cent but agreed to a bargain that offered a sentence of one year, which meant he would be immediately released, saying “You mean if I’m guilty I get out today? . . . But if I’m innocent I got to stay in?” (Mills, 1971, p. 62). If deals aren’t sweet enough, on the other hand, the defendants may decide to take their chances at trial.
Sometimes, defendants plead guilty because they wish to avoid further stigma or inconvenience. One defendant, for example, pled guilty because he knew a trial would be reported in the newspaper and he worried about the effects on his family (Baldwin and McConville, 1978, p. 294). The above-mentioned defendant who insisted he was innocent pled guilty because fighting the charges would
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involve waiting in jail until trial, whereas a guilty plea ensured his immediate release (Mills, 1971, p. 62). When we consider that the average case takes about seven months from the time of arrest to sentencing, and jury trial cases average a year from arrest to sentencing (Brown, Langan, and Levin, 1999, p. 8), we can understand the motivation to just plead guilty and go home, despite the effect on one’s record.
THE HOW AND WHY OF PLEA BARGAINING
Now that we know a little about the types, history, and motivations behind plea bargaining, we need to look at how they take place. Before any communication takes place between the defense attorney and prosecutor, the two adversaries go through the case files to determine what the case is “worth.” Items that increase worth include solid evidence, serious harm, vulnerable victim, extreme culpability, and other factors that strengthen the case against the defendant. The presence of weak evidence, uncooperative witnesses, reluctant victims (e.g., in some domestic violence cases), dubious harm, or reduced culpability (e.g., due to youth or mental impairment) decreases the legal worth of the case. Fairness also fits into the pic- ture, as the goal of both sides is supposed to be justice.
In some respects, the prosecutor begins the plea bargaining process since he or she makes the first statement regarding what the case is worth through the charges he or she files. If the defense attorney disagrees with the charges, he or she may decide to bargain with the prosecutor.
Although either side may broach the possibility of plea bargains, they are typ- ically initiated by defense attorneys, who approach prosecutors with offers to negotiate cases. In a system that depends heavily on guilty pleas, the initiation and continuation of plea bargaining sessions is one of the defense attorney’s primary roles. If the defense attorney’s offer is consistent with a prosecutor’s perception of the “worth of the case” it will usually be accepted; the prosecutor is usually more concerned about convictions than sentences (McCall, 1978, p. 99). If the offer does not seem appropriate, the prosecutor may negotiate further (McCall, 1978, p. 99). If the prosecutor won’t agree, the defense attorney may threaten to “work [the prose- cutor] to death” through filing motions (Heumann, 1978, p. 39) or otherwise put- ting on a zealous defense that, through exercising as many of the defendant’s rights as possible, will make the prosecutor work hard to obtain any conviction.
The bargain may involve dropping charges, reducing the severity of individ- ual charges (e.g., from grand larceny to larceny), or making specific sentence rec- ommendations. Even where the negotiation does not include the recommendation of a specific sentence, bargains allow the defense to limit the discretion of “hang- ing” judges (who are known to be tough on offenders) by lowering the maximum sentence that may be imposed.
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Once the attorneys are in agreement, it is the defense attorney’s job to “sell the offer to the accused” (Moran and Cooper, 1983, p. 75). It is this role in plea bar- gaining that has attracted much criticism. Blumberg (1967) likened the defense attorney’s role in persuading the defendant to accept negotiated justice to the work of a “double agent” or someone participating in a “confidence game”:
Criminal law is a unique form of private practice. It simply appears to be private practice. Actually, it is bureaucratic practice, because of the lawyer’s role in the authority, discipline, and perspective of the court organization. . . . [T]he lawyer in the criminal court is a double agent, serving higher organizational rather than professional ends. The lawyer-client “confidence game,” in addition to its other functions, helps to conceal this fact. (pp. 114–115)
In the end, the bargains must meet with judicial approval, but the recommendations of the prosecutor and defense attorney are rarely rejected (Cramer, 1981, p. 185; Feeley, 1979; Neubauer, 1974, p. 93; Ryan and Alfini, 1978, p. 486). Typically, judges confine themselves to determining whether the defendant appears to be guilty of the offense and whether the plea was entered into voluntarily (Ryan and Alfini, 1978, p. 486). This tendency to endorse the attorneys’ work reflects the fact that judges typically know far less about the case than either attorney, which leads them to honor the attorneys’ assessment regarding the “worth” of a case (Meyer and Jesilow, 1997, p. 65).
When the recommended sentences appear too harsh or too lenient, some judges will refuse the bargain and send the attorneys back to the drawing room to design a more appropriate sanction (Meyer and Jesilow, 1997, p. 55). Some judges get more involved in plea bargains than simply reviewing the finalized bargain. About one third of judges attend plea bargaining sessions and some even “partici- pate in the substance of plea negotiations with counsel, and in doing so influence, sometimes even dominate, the sentencing decision” (Ryan and Alfini, 1978, pp. 501–502). See Box 11.6 for one judge’s assessment of his role in plea bargaining.
In cases where defense attorneys or prosecutors are absent, which is common in misdemeanor level courts, judges sometimes play an important role in plea bar- gaining. In courts where there is no prosecutor, judges may “take on the trappings of the prosecutorial role, including negotiation” (Ryan and Alfini, 1978, p. 495). In one jurisdiction characterized by lack of defense counsel at misdemeanor-court sessions, plea bargains were “routinely manufactured by prosecutors and judges” during the defendants’ arraignments (Meyer and Jesilow, 1997, p. 11). One lower court judge made his intentions clear when addressing a man accused of presenting false information to a police officer and violating probation: “If you plead guilty, I’ll give you credit for time served. That’s what you want to do, right?” (Meyer, 1992b). The hearing lasted one minute from start to finish, and the defendant was sentenced to the two days he had already served in jail.
If the attorneys are unable to work out a deal that satisfies both of them (and the defendant), or the judge rejects the bargain, the case must go to trial. Offense
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seriousness is only one factor considered by the parties when negotiating plea bar- gains, but it should come as no surprise that those accused of violent offenses are less likely than other defendants to give up their right to trial by pleading guilty (Brown, Langan, and Levin, 1999, p. 7). Certainly, any offers acceptable to prose- cutors in violent offenses are less attractive to the defense, who may decide to try for an acquittal at trial. See Box 11.7 for the breakdown of conviction type (i.e., plea bargain versus following a trial) by offense type.
Typically, the prosecutor is less likely to budge on cases with strong evi- dence, and is more likely to bargain when the chances of conviction are low. If there is clear evidence of guilt, such as a videotape of the offense or strong scien- tific evidence, the prosecutor will be unwilling to concede much unless there are other problems with the case (e.g., the victim is afraid or does not wish to testify at the trial). Bargains are also unlikely in cases where there is significant public ire, even if the offense is minor.
Defense attorneys are less likely to give up much in terms of a plea bargain if there is a decent chance of acquittal (e.g., because of public sentiment for a crime victim accused of killing a burglar) or if the culpability for the offense may be blamed on another person (e.g., a killing that may have been in self-defense). If the bargain involves little gain (e.g., a reduction of only a few years off a lengthy prison sentence), many defense attorneys would rather take their chances at trial.
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BOX 11.6
One Judge’s Assessment of His Role in Plea Bargaining
The following interview segment with a judge tells a little about how judges can get involved in the plea bargaining process in the lower courts as well as the supervisory function judges must fulfill:
They [the attorneys] make offers and counter-offers and often the judge in that court will sort of get into it. We’ll have a conference in chambers and will talk about the case. . . . The judge’s duty there is similar to the arraignment court—make sure there’s justice. . . . The judge says, “Given the facts that you’ve given me, this is what I would probably sentence.” The defense attorney comes back and says, “That’s what he [the defendant] wants.”. . . The judge’s role at that point is to be careful and not give some low-vault [i.e., unnecessarily lenient] indicated sentence. You’ve got to watch that. Give the same sense of fairness. (Meyer, 1992a)
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THE U.S. SUPREME COURT’S VIEW OF PLEA BARGAINING
By now, it is relatively easy to see that plea bargains save money and time and that they help the two sides avoid the risks of losing at trial, but these considerations should not be the only ones that determine whether the practice should be contin- ued. Saving time and money is a good thing, but appellate courts will not tolerate
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BOX 11.7
Percent of Felons Convicted in State Courts, by Offense and Type of Conviction, 1996
Percentage of felons convicted by—
Most serious Trial Guilty conviction offense Total Total Trial Jury Bench plea
All offenses 100% 9% 4% 5% 91% Violent offenses 100% 17% 11% 7% 83%
Murdera 100 46 40 7 54 Sexual assaultb 100 19 11 7 81 Robbery 100 16 10 7 84 Aggravated assault 100 14 7 7 86 Other violentc 100 15 7 8 85
Property offenses 100% 6% 2% 5% 94%
Burglary 100 8 3 5 92 Larcenyd 100 6 2 4 94 Fraudc 100 6 1 5 94
Drug offenses 100% 8% 3% 5% 92%
Possession 100 9 2 7 91 Trafficking 100 8 3 4 92
Weapons offenses 100% 9% 4% 5% 91%
Other offensesf 100% 8% 2% 6% 92%
Note: Detail may not add to the total because of rounding. Data on type of conviction were available for 629,593 cases. Table includes estimates for cases missing a designation of type of conviction. aIncludes nonnegligent manslaughter. bIncludes rape. cIncludes offenses such as negligent manslaughter and kidnaping. dIncludes motor vehicle theft. eIncludes forgery and embezzlement. fComposed of nonviolent offenses such as receiving stolen property and vandalism.
Source: Brown, Langan, and Levin, 1999, Table 10.
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fiscally sound features that result in injustice; for example, eliminating the right to counsel would certainly save a lot of time and money, but would also result in unconstitutional unfairness. Likewise, plea bargaining would have to be discontin- ued if it were to be used in a patently arbitrary or discriminatory fashion without regard for the seriousness of the crimes alleged to have been committed by the defendants. The following cases illustrate the Supreme Court’s views regarding the propriety of plea bargaining.
First, the U.S. Supreme Court had to determine whether there must be evi- dence of defendants’ voluntary entrance into plea bargains. In the 1969 case of Boykin v. Alabama, the court reversed the conviction of a man who had received five death sentences after pleading guilty to five counts of robbery, not because death was an unfair penalty for robbery,6 but because the trial judge had not ensured that Boykin’s guilty pleas were voluntary. As a result of this case, judges are now expected to make sure guilty pleas are voluntary; of course this does not always happen. See Box 11.8 for an example of Amy Grossberg’s post-bargain hearing in which the judge did try to ensure that she willingly agreed to plead guilty.
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BOX 11.8
A Judge Ensures That Amy Grossberg’s Plea Bargain Is Acceptable
The following is a transcript of the hearing following Amy Grossberg’s acceptance of a plea bargain that would reduce the charges she faced in connection with the death of her newborn from capital murder to manslaughter. She and her boyfriend were catapulted into infamy after their newborn son was found dead in a Delaware trash dumpster in 1996. Because Ms. Gross- berg provided the same answer to every question (i.e., “Yes, your honor”), only her first answer is included to minimize space.
As you read the transcript, look for how the judge ensures that the bargain is acceptable (e.g., that it was knowingly and voluntarily entered into by the defendant).
Superior Court Judge Henry duPont Ridgely: Miss Grossberg, you’ve heard the statements to the court by your counsel, Mr. Malik, regarding the guilty plea which is tendered today. Was everything he said correct?
Grossberg: Yes, your honor.
Do you understand that you have the right to a speedy trial with the assistance of a lawyer, and that you will give up that right by pleading guilty?
Do you understand you will have the assistance of a lawyer at sentencing if your guilty plea is accepted?
You are charged by an amended indictment to include a lesser-included offense, manslaughter . . . It reads: Amy S. Grossberg, on or about the 12th day of November, 1996, in the County of New Castle, State of Delaware, did recklessly cause the death of the newborn baby of Amy S. Gross- berg and Brian C. Peterson Jr. Do you understand the nature of this charge? IS
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Then, the high court addressed the question of whether it is constitutionally permissible to reward defendants who plead guilty by offering them reduced penal- ties, ruling that this was acceptable in Brady v. United States (1970, pp. 752–753). During the same year, the high court agreed to review a case involving another important issue in plea bargaining, protestations of innocence by defendants who accept plea bargains. In Carolina v. Alford (1970), Alford was charged with first- degree murder, but was given the option of pleading guilty to second-degree mur- der. Despite the strong evidence against him, Alford insisted he was innocent, but pled guilty to the reduced charge because he feared being executed:
I pleaded guilty on second-degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault . . . and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all. (p. 29)
In upholding the validity of Alford’s plea and sentence of thirty years in prison, the Supreme Court held that defendants may plead guilty without admitting culpability.7
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The U.S. Supreme Court’s View of Plea Bargaining 315
Are you, in fact, guilty of this charge?
Do you understand that the statutory penalty is up to ten years in jail and such fine or other con- ditions as the court may order?
Has anyone threatened you or forced you to plead guilty?
I show you a guilty plea form. Did you go over this form carefully with your attorneys?
And did you give true answers to each of the questions on this form?
Do you understand each of the constitutional rights that are listed on this form?
Do you understand that you will give up all of these rights by pleading guilty?
I show you now a two-page plea agreement. Did you go over this document carefully with your attorneys?
And did you read and sign it?
Is this the entire agreement between you and the prosecution?
Do you seek to voluntarily enter this plea of your own free will because you are guilty of this charge?
Have you discussed this matter fully with your attorneys?
And have you discussed it fully with any other family member that you care to discuss it with?
Do you seek to voluntarily enter a plea of your own free will, of your own free accord?
Are you satisfied that your attorneys have done all that they can reasonably do for you?
Do you understand that the next proceeding before this court will be your sentencing?
Source: Courtesy of The News Journal, Delaware, April 23, 1998.
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Of course, as mentioned earlier in this chapter, some judges may refuse to accept this type of plea bargain if they feel the defendant is not guilty of the offense (e.g., Ryan and Alfini, 1978, p. 486).
The next year brought Santobello v. New York (1971), which held that defen- dants are entitled to a legal remedy if prosecutors break conditions specified in plea bargains. In that case, Santobello pled guilty after the prosecutor promised not to recommend a specific sentence. As a result of time delays, a new prosecutor was assigned to the case who hadn’t realized that his predecessor had made the prom- ise, so he recommended the maximum sentence. Even though the sentencing judge said he would have imposed the maximum in the absence of the prosecutor’s rec- ommendation, the Supreme Court sent the case back with instructions for the trial court to send the case to another judge or to offer Santobello the option of with- drawing his guilty plea.
Another landmark plea bargaining case, Bordenkircher v. Hayes (1978) held that prosecutors can threaten to bring additional charges against defendants who refuse plea bargains. A prosecutor had threatened to re-indict Hayes under Ken- tucky’s habitual offender law (which had a mandatory sentence of life in prison) if he did not accept a plea bargain for five years in prison for writing a forged check for $88.30. Hayes refused, the prosecutor kept his word, and Hayes received the mandatory life term. In 1982, the Supreme Court added to Bordenkircher in United States v. Goodwin, when it ruled that prosecutors may file additional charges against defendants if they back out of plea bargains that call for fewer charges.8
Taken together, these cases illustrate the Supreme Court’s view that plea bar- gaining is a valid form of justice, and that the agreements are valid like other con- tracts (i.e., they cannot be broken without consequences). The cases also demonstrate that the negotiation process does not prohibit efforts by prosecutors to seek enhanced charges against defendants who are unwilling to admit their guilt in plea bargains. Finally, they show the value the criminal justice system assigns to plea bargaining; even the U.S. Supreme Court said the practice is desirable given the resource savings it can generate (Santobello v. New York, 1971, p. 260). In the end, it is clear that plea bargaining progressed from America’s dirty little secret to an accepted and desirable routine in just a few decades.
See Box 11.9 for an example of the form that must be signed by defendants who wish to plead guilty. Even a quick perusal clearly shows the influence of the U.S. Supreme Court decisions regarding plea bargains (see Box 11.10).
ARGUMENTS FOR AND AGAINST PLEA BARGAINING
The Supreme Court has approved of plea bargaining, going so far as to call it “an essential component of the administration of justice” and stating that “properly administered, it is to be encouraged” (Santobello v. New York, 1971, p. 260), but this is only one argument in favor of bargaining. Another argument for the practice
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BOX 11.9
A Sample Guilty Plea Proceeding Form
To ensure that guilty pleas are voluntarily entered, the following form (or one similar to it) may be used. In some jurisdictions, defendants read and initial the forms themselves. In New Mex- ico, however, the judge presiding over the guilty plea is required to complete the form, initialing that each condition was met before allowing the plea. As you read over the facts that must be ascertained, consider the U.S. Supreme Court decisions that may have inspired each of them.
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is that it allows courts to devote scarce resources to the cases that require them, by processing routine cases through bargains. When cases are relatively ordinary, the members of the courtroom work group may feel their time is better spent on the more uncommon cases, making plea bargains all the more attractive to them. See Box 11.11 for one student’s observations of a court of limited jurisdiction. The stu- dent notes several issues that play important roles in plea bargains.
Defenders of plea bargains also point out that they are used only in cases where conviction at trial is less likely, so the agreements ensure some form of penalty for defendants who might be acquitted on technicalities. This is the “half a loaf is better” argument (Moley, 1928, p. 123). Cutting deals with defendants enables the prosecutor to better do the job because he or she can use the time saved to pursue other criminals (Easterbrook, 1992, p. 1975). Sometimes, plea bargains are offered to those who testify against others, enabling prosecutors to successfully go after “bigger fish” who mastermind crimes.
One scholar9 argues that plea bargains are “superior” to trials for “separating the guilty from the innocent” (Easterbrook, 1992, p. 1972). He defends the prac- tice, in part on grounds that prosecutors are better able than jurors to ascertain guilt, and plea bargains can consider evidence that might be excluded from trials (p. 1971).
Victims, too, sometimes prefer plea bargains. By avoiding trial, they need not testify in court, which may be a frightening experience for victims of violent crimes. Victims also avoid the emotions associated with the possible acquittal of
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Source: New Mexico Supreme Court Rules 1986, Criminal Forms, Judicial Pamphlet 9, 1990 Replace- ment, pp. 63–64
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BOX 11.10
Some Important Passages from U.S. Supreme Court Cases on Plea Bargaining
Judges must ensure that guilty pleas are entered voluntarily:
It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary (Boykin v. Alabama, 1969, p. 242).
Guilt need not be admitted for a plea to be valid:
Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposi- tion of criminal penalty. An individual accused of crime may voluntarily, know- ingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime. Nor can we perceive any material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evi- dence of actual guilt. Here the State had a strong case of first-degree murder against Alford. Whether he realized or disbelieved his guilt, he insisted on his plea because in his view he had absolutely nothing to gain by a trial and much to gain by pleading (Carolina v. Alford, 1970, p. 37).
Bargaining is “an essential component” of the justice system:
The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Gov- ernment would need to multiply by many times the number of judges and court facilities (Santobello v. New York, 1971, p. 260).
Plea bargains are “highly desirable”:
Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilita- tive prospects of the guilty when they are ultimately imprisoned (Santobello v. New York, 1971, p. 261)
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the defendant, especially in crimes where the defendant claims the victim is at fault or shares the blame for the offense (e.g., some sex crimes).
Of course, there are also arguments against the practice. One common argu- ment is that plea bargaining allows offenders to escape the punishment that is legis- lated for their crimes: “Men charged with crimes carrying heavy penalties are treated as if they have committed only minor offenses carrying light penalties. . . . Justice seems to be bought on the cheap” (Rosett and Cressey, 1976, p. 3). The widespread use of plea bargaining to reduce penalties may lead “seasoned crimi- nal” to “conclude that it is worth his while” to break the law and pay the reduced price for his actions (Dash, 1951, p. 395). However, other commentators assert that
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Prosecutors must honor conditions of bargains:
On this record, petitioner “bargained” and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecu- tion is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of “letting the left hand know what the right hand is doing” or has done. That the breach of agree- ment was inadvertent does not lessen its impact (Santobello v. New York, 1971, pp. 261–263).10
Threats to seek enhanced charges are valid in plea bargain negotiations:
After arraignment, Hayes, his retained counsel, and the Commonwealth’s Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and “saved the court the inconvenience and necessity of a trial,” he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act, . . . which would subject Hayes to a mandatory sentence of life imprisonment by reason of his two prior felony convictions. . . . It may be help- ful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotia- tions. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotia- tions relating only to the original indictment had ended with the defendant’s insis- tence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain (Bor- denkircher v. Hayes, 1978, pp. 358–361).
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Arguments for and Against Plea Bargaining 321
BOX 11.1
“A Front Row Seat into the Legal System”: A Student’s Observations Regarding Plea Bargaining
Stacy Walter, one of the author’s students, was a regular observer at her local court. The follow- ing excerpts from her observations show several factors that are important in plea bargaining. First, the cases are run-of-the-mill routine cases, which increase the likelihood that plea bar- gains will be viewed favorably by key justice decision-makers:
The night’s docket list read like a never-ending saga of operating an unsafe vehicle in the borough of XX, disregarding a police signal and siren, and failure to appear. The first case called was a failure to appear. This was not the first time this offender had skipped court. Judge T issued a warrant $500.00 and no 10% [bail]. Next up, operating a motor vehicle without insurance. The defendant pled “it was a friend’s car, your honor.” Guilty, $31.00 fine $30.00 court costs. . . .
The defendants also valued plea bargains. Stacy Walter noted that a fourth member of the court- room drama in this jurisdiction was the court liaison, who actually worked out the deals:
On a side note, as these proceedings were going on, people were constantly wan- dering in and out of the courtroom doors. They had formed a line to speak to the court liaison, who was plea bargaining their charges.
The members of the courtroom work group got along well. Even the private attorneys were friendly with the other members of the courtroom work group. Because they got along, the judge and attorneys (and the courtroom liaison) were able to work as a team to efficiently dispose of cases:
Judge T and prosecutor K seemed like a tag team, with their secret teammate, the court liaison, out in the hallway cutting deals. . . . Many of the private attorneys hired by the defendants seemed to know Judge T. Judge T wished one attorney good luck as his wife was expecting a baby any day. Overall, I would say the environment was well-connected.
The courtroom regulars justified bargaining, saying it kept the courtroom operating smoothly:
Then we began to talk business. They [the court liaison and two police officers she was interviewing] told me . . . why there are so many plea bargains. They said there are so many because they want to keep the court running smooth.
Stacy Walter noted the links between assembly-line justice and plea bargaining:
A great deal of what I observed in court was similar to that which I had read in the textbook. The interaction of the courtroom work group could not have been better explained or demonstrated. The “assembly line of justice” was up and running in full speed. Shortcuts were taken in order to keep the docket list running smoothly. Plea bargains were cut left and right.
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“plea bargaining has proven to be a phantom loophole” because the evidence shows that plea bargaining does not let serious criminals escape with light sen- tences (Walker, 2001, p. 159).
Even in 1927, Miller worried that plea bargains meant that defendants’ rights were trampled because prosecutors, mindful of their records, would “overlook” the rights of the poor and uneducated by persuading them to give up their right to trial by pleading guilty. It is important to recognize that most defendants in Miller’s day were not represented by counsel, as that right was not guaranteed to defendants until Gideon v. Wainwright in 1963. Miller theorized that defendants without resources would be targeted for abuse by prosecutors who felt they needed to improve their conviction rates. Another important distinction between then and now is that many jurisdictions did not then allow bench trials, so any trials in the 1920s had to be conducted in front of juries (Moley, 1928, p. 102).
In modern times, the practice of plea bargaining has been attacked not for its use per se, but on grounds that defendants of color often receive less desirable plea deals than white defendants (Donziger, 1996, p. 112). In California, for example, two defendants with similar nonviolent criminal histories, accused of burglary and receiving stolen property in separate incidents, received very different plea deals: The white defendant was convicted of one count of burglary after the DA dis- missed the other three charges, and was sentenced to sixteen months in state prison; the African American defendant was convicted on all four charges and was sentenced to eight years in state prison (Donziger, 1996, p. 112). A recently released comparison of plea bargains for white and African American defendants in 146 capital cases found that 60 percent of white defendants charged with capital crimes avoided the death penalty through plea bargains in comparison to 41 per- cent of black defendants (Dorning, 2000). The Justice Department noted that this disparity alone does not necessarily indicate discrimination, but leading death penalty researcher David Baldus believes that the results “. . . raise a red flag. . . . the magnitude of the disparity is very strong” (Dorning, 2000, p. 1).
Another criticism of plea bargaining is related to its use by prosecutors to pursue “bigger fish,” as mentioned above. This has led to cases in which offenders who had more information to offer a prosecutor received significantly lighter sen- tences than their less culpable co-defendants who had little knowledge with which
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The prosecutor benefitted from the regular use of bargains, making him likely to continue the practice:
The prosecutor racked up a batting average like no other. . . . I have always wanted to be an attorney. . . . Watching prosecutor K rack up a batting average made me envious. I want a batting average, too.
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to bargain. For example, in a number of drug cases, women who were peripherally involved in drug distribution networks received sentences that were years longer than their heavily involved boyfriends, who used their knowledge to plea bargain their sentences down (e.g., Johnson, 1995).
Modern critics of plea bargains are more likely to complain that the practice encourages overcharging by prosecutors (so they can reduce the charges without hesitation) and that it penalizes those who seek trial (e.g., Felstiner, 1978, p. 309). These are serious criticisms that may soon be the substance of a petition to the Supreme Court to review a case dealing with these issues. It is criticisms such as these that have led to bans on plea bargaining in some jurisdictions. Through the implementation of strict sentencing guidelines, for example, the federal system has attempted to do away with plea bargains, but it has been shown that the process continues (Wray, 1993, pp. 7–8). One way federal prosecutors circumvent manda- tory sanctions and thus engage in quasi-bargains is to charge drug couriers under statutes that do not involve mandatory sentences. Federal prosecutors in eastern New York say they must do this because most couriers have “limited culpability,” most judges dislike harsh mandatory sentences for “low-level offenders,” and charging offenders with crimes that involve mandatory penalties increases the like- lihood of trials that would “overwhelm” the courts (Wray, 1993, p. 7).
Individual jurisdictions have also banned plea bargaining. The best known are Alaska and El Paso, Texas. Alaska’s attorney general banned plea bargaining in 1975 (Rubinstein and White, 1978, p. 367). Within a few years, the policy increased the number of trials but did not affect the rate of guilty pleas or the time from arrest to the end of trial. Sentences became more severe, but only for those accused of minor offenses or who had no prior convictions; these “clean kids” received longer prison terms after the ban (Rubinstein and White, 1978, p. 376). Sentences for violent offenders, on the other hand, remained the same because they had been receiving harsh sentences before the ban. The lack of change in the rate of guilty pleas leads some scholars to surmise that implicit bargaining was still taking place (Guidorizzi, 1998, p. 775), and some researchers found evidence of explicit bargains despite the ban (Rubinstein and White, 1978, pp. 370–371). Alaska removed the ban in 1993, but plea bargaining had been fairly rampant since a 1980 change in charging policy that allowed prosecutors to reduce charges to reflect “the essence of the conduct engaged in” rather than what the prosecutor “could prove” (Guidorizzi, 1998, p. 775).
The ban on plea bargaining in El Paso, Texas, lasted only six years (Acevedo, 1995, p. 988). Within three years, the trial rate had doubled and backlog had increased by 250 percent (Weninger, 1987, p. 277). Some judges complained bit- terly that they wanted bargaining to return so they could reduce their dockets and the backlog (p. 306). The backlog was so great that the jurisdiction had to reorgan- ize its courts to enable the civil court judges to assist with the increases in criminal trials. Despite the intention to bring about sentencing uniformity, the ban did not
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appear to have any effect on judges’ sentence severity (p. 303). The ban did, how- ever, increase the length of pre-trial detention (p. 309).
There have been other temporary bans, including Bronx County (New York), Detroit (Michigan), and the state of California’s ban on bargaining for defendants charged with “serious” offenses (Acevedo, 1995, p. 988). Undoubtedly, there will be many bans on the practice in the future; whenever plea bargaining is viewed as allowing the premature release of offenders, there will be attempts to eradicate its existence. Any ban will be ineffective, however, unless those who set it in motion fully understand the effects it will have on the justice system and commit the resources necessary to deal with those changes.
CONCLUSION
Although not formally recognized until relatively recently, plea bargains have existed for at least two hundred years and their popularity does not appear to be waning. If anything, the courtroom work group has come to depend on them as a way to effi- ciently dispose of the majority of cases that form their workload. But plea bargaining is more than a way to speed up the assembly line of justice; in many ways, it has become a way to do justice by mitigating the punishment imposed on many offend- ers in exchange for admissions of culpability and testimony against others.
In the next chapter, we finally move to the trial itself. It has been a long process with many steps, but the trial is finally ready to begin. After the jury has been selected, the two attorneys will present their cases and the judge or jury will decide the outcome. You will see how all the preceding steps come together for this—the finale.
D I S C U S S I O N Q U E S T I O N S
1. Some people have said that American justice is no longer adversarial because 90 percent or more of cases involve guilty pleas. What are some ways that justice can remain adversarial even in cases where defendants plead guilty?
2. In a class taken by one of the authors of this book, the professor offered a “B” on the final paper to anyone who did not submit a paper.11 This scenario is somewhat similar to plea bargaining by prosecutors because the professor would save the time necessary to grade the papers, while the students would save the time and effort necessary to write the papers. Assuming that offer were made in this class, would you accept your instructor’s offer? Why or why not? What factors would influence a student’s choice to take the “B” versus writing the paper? Which students would be more likely to accept such an offer? Which ones would turn down the offer? How does this example relate to plea bargaining in the criminal justice system by defense attorneys and prosecutors?
3. Scan your local newspaper for stories involving plea bargains. What reasons were offered by the prosecution for engaging in plea bargains? What reasons did defense attorneys offer for the defendant’s accepting a bargain?
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4. Classify the plea bargains you found for question 3 into the three categories: charge, count, and sentence bargaining. Do you notice any patterns in the types of bargains offered?
5. Scan your local newspaper for stories involving rejected plea bargains. What were the reasons behind the rejections, and which party was unsatisfied with the bargains?
6. Search your local newspaper for ten stories on recent crimes, trying to find those that present enough detail so you understand what happened. Assuming you are the local prosecutor, and you are able to try only eight cases, which two cases would you bargain away? What factors influ- enced your decisions? For those that lacked enough details for you to be comfortable with a bar- gain, what factors did you want to know (e.g., level of planning in the offense, personal background of the offender, etc.)?
7. What effects do modern technology and developments in investigations (e.g., DNA tests) have on a defendant’s likelihood of accepting a plea bargain versus taking one’s chances at trial? What do you think will happen as more and more new technologies become available to the American justice system?
8. How could a prosecutor design a bargain that satisfies his or her needs, the defense’s needs, and the public?
9. Oh, lucky you! You have just been appointed to the plea-bargaining reform commission for your state. What guidelines would you suggest to remedy the ills of plea bargaining (you might want to first think about the problems your state faces with respect to plea bargaining)?
10. Consider what you’ve learned regarding the process of plea-bargaining. Recall that the Supreme Court held that it was constitutionally acceptable for prosecutors to threaten to add charges against defendants who refused plea bargains (Bordenkircher v. Hayes, 1978). In this same case, the Court stated that plea bargaining is a “give-and-take negotiation . . . between the prosecution and defense, which arguably possess relatively equal bargaining power” (p. 362). Do you think that the two sides do in fact possess relatively equal leverage during plea negotiations? What are some of the reasons for your answer? Even if this were true in general across cases, could there be cases where the government has significantly more power? In such circumstances, how would this affect plea bargaining?
N O T E S
1. Of course, some defendants who plead guilty still receive the death penalty because plea bargains often don’t guarantee a particular sentence. The sentencing agent, typically a judge, does not always follow suggestions made by the prosecution.
2. Though she initially agreed and signed a confession which saved her life, she later recanted, say- ing she had confessed only because of “fear of the fire” and that she had heard again from the voices that she was damning herself by recanting (Sackville-West, 1936, p. 336). She was burned at the stake as a heretic on May 30, 1431, but was canonized as a saint in 1920.
3. This was probably due to officials’ ultimate recognition that the witch scare was in error, rather than any intended long-term lenience.
4. The defendant was sentenced to death for his crimes, showing that pleading guilty does not ensure lenient treatment from the court.
5. Author’s Note: Remember that indictments are handed down by grand juries, so that any pre- sumed abuses by prosecutors should be less likely.
6. Remember, it was once legal to impose death sentences for crimes other than murder or offenses with serious harm. It was only in 1977, in the case of Coker v. Georgia, that the death penalty was ruled
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unconstitutional for the rape of an adult woman and in 1982, in Enmund v. Florida (1982, p. 797), the death penalty was held to be an “excessive penalty” for robbers who do not kill their victims.
7. It is important to point out that the evidence in the Alford case was overwhelmingly against him. One witness testified that Alford had left his house with his gun, saying he was going to kill the victim, then returned home and stated that he had “carried out the killing” (Carolina v. Alford, 1970, p. 28).
8. Of course, some may argue, based on the Santobello and Goodwin cases, that defendants are not as “free” to reject bargains as initially assumed, meaning that the practice is not always com- pletely voluntary.
9. The scholar Frank H. Easterbrook is also a judge, as he is both senior lecturer at Yale law school and a judge on the United States Court of Appeals.
10. Subsequent cases have shown that depending upon constitutional issues, such as whether a defen- dant’s plea was made “in reliance on” a prosecutor’s offer of leniency, prosecutors sometimes are not held to the terms of their deals (e.g., Ejzak, 1991, p. 107). In one case, for example, the pros- ecutor offered a reduced penalty in exchange for the defendant acting as an informant against others; the defendant cooperated, but the prosecutor withdrew the offer (People v. Navarroli, 1988). In another case, a defendant was promised reduced charges if he cooperated in the prose- cution of another individual; his cooperation resulted in the arrest of the sought-after killer, but the prosecutor never called him to testify and failed to honor the agreement (People v. Marquez, 1981). In both cases, the courts upheld the prosecutions’ actions as acceptable. What distin- guished these two cases from plea bargains was that neither involved the actual pleading guilty in exchange for a reduced penalty (Ejzak, 1991). Since no constitutional rights were involved in the deals, the prosecutors were not legally obligated to honor their deals.
11. We will never know whether the professor was serious when he made the offer because none of the students in the class accepted the deal. They all chose to write a paper.
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