Castaneda 1 Caleb Castaneda Professor Chrappa Crime and Punishment 11 December 2013 Against Plea Bargains It is a common occurrence

in any courtroom in the country: A defendant is accused of a crime !e pleads guilty A sentencing date is assigned and the court mo"es on to the ne#t case $hat is not seen by the obser"er is %hat happened in the days and %ee&s before this scene played itself out: charges %ere filed' negotiations occurred bet%een defense and prosecution' and the defendant agreed to plead guilty to a lesser charge in e#change for sa"ing the state the time and effort to prosecute fully' not to mention the ris& that it might lose the case (his process is called )plea bargaining * I %ant to suggest that the process of plea bargaining is an affront to +ustice' for at least three reasons: 1, it denies "ictims the right to see their "ictimi-er brought to complete +ustice. 2, it denies many accused their )day in court*' as they are put under pressure by their counsel to plead guilty. 3, it allo%s the state to a"oid the necessary tas& of prioriti-ing its case load In order to understand why I ob+ect to Plea Bargaining' it is necessary to understand +ust %hy it is that it occurs in the first place In other %ords' if both parties agree to the plea bargain' it must be in each side/s percei"ed interests 0ust %hat is the percei"ed interest of the prosecution and the defense that %ould cause them to come to a plea bargain in the first place According to the American Bar Association' plea bargaining is a practical step for all parties )Defendants can a"oid the time and cost of defending themsel"es at trial' the ris& of harsher punishment' and the publicity a trial could in"ol"e* 1American Bar Association, 2ean%hile' )(he prosecution sa"es the time and e#pense of a lengthy trial* and the )burden of

Castaneda 2 conducting a trial on e"ery crime charged* 1American Bar Association, And both sides benefit from not ha"ing to face the uncertainty of a trial 1American Bar Association, It seems to me that absolutely none of these reasons are in the pursuit of +ustice In order to understand this claim that reasons of the sort pro"ided by the American Bar Association are not in the pursuit of +ustice' %e might reflect on %hat +ustice is. 3f course' +ustice is notoriously difficult to define But t%o conditions seem necessary for our society to +udge an act of punishment as +ust 4irst' %e seem to %ant to say that' for any act of punishment to be fair' the punishment must be appropriate for the crime' neither too harsh nor too lenient 5econd' %e seem to +udge a punishment as +ust only if the guilt of the perpetrator has been established beyond a reasonable doubt It is beyond the scope of this essay to establish these t%o conditions definiti"ely But they seem intuiti"ely correct' and for the purposes of this essay I shall assume them to be true Plea bargaining seems to undercut this on both fronts (he principle of offering the accused a lesser charge' and hence' a lesser punishment' seems to undercut the principle that punishment should be appropriate to the crime 3n the other condition' I ta&e it as self6e"ident that in order to establish guilt' any confession obtained from the accused must be' at minimum' free of coercion or incenti"i-ation After all' if the accused confesses due to coercion or due to some incenti"e' it %ould seem to call the sincerity of his confession into doubt !o% could %e e"er be sure beyond a reasonable doubt that his confession %as due to actual guilt rather than the effects of our tampering7 It %ould seem' then' that +ustice re8uires t%o elements: 1, It re8uires accurate charges to be brought against the accused. 2, It re8uires some method of establishing guilt beyond any reasonable doubt In our society' this second condition is typically met by a trial' %here the accused has a right to defend himself "igorously by challenging any e"idence %hich the state might submit (hus' to count as +ustice it %ould seem that the accused must be

Castaneda 3 charged appropriately and ha"e a trial !e may' of course' confess to the crime But any confessions must be free of coercion or incenti"i-ation It is my contention that plea bargaining fails these conditions I ta&e it that one of the goals of any system %orthy of the name )0ustice* must be to ensure that "ictims see the full %eight of the la% brought to bear on those %ho ha"e "ictimi-ed them If' say' a homicide occurs' it is of little consolation to the "ictim/s family to see the perpetrator charged %ith manslaughter 3ne of the defendant/s ob+ecti"es' according to the American Bar Association article cited earlier' is to a"oid harsh punishment But harsh punishment' or more appropriately' punishment suited to the crime' is precisely one of the conditions of +ustice 5o one of the stated incenti"es of the plea bargain process from the perspecti"e of the defendant is ostensibly to a"oid being appropriately sentenced $hile such a desire on the part of a perpetrator is understandable' it is li&e%ise understandable if "ictims prefer to see those %ho "ictimi-e them ha"e their day in court By pleading guilty to a lesser offense' perpetrators are able to deny their "ictims +ustice It is nearly impossible to find reliable statistics on ho% many innocent people are no% in prison Part of the reason for this is ob"ious: 4ar more people claim to be innocent than actually are' and if there %ere some process to reliably determine that any gi"en indi"idual is innocent' that same process could also be used to free them (hey remain behind bars only because there is not enough certainty of their innocence to o"erturn their con"iction 4or this reason' I %ant to suggest that any statistics on this matter are less than reliable 9onetheless' certain groups ha"e tried to put some number on the figure (he Innocence Pro+ect' for instance' estimates the number of innocent people in prison at bet%een 2 3: and ;: 1Innocence Pro+ect, If these numbers are accurate' then in terms of percentages the criminal +ustice system is doing a fairly decent +ob at identifying real criminals But nonetheless' the fact remains that 2: of the total

Castaneda < number incarcerated is still a staggering figure According to the reform oriented group' (he 5entencing Pro+ect' there are no% 2 2 million people in prison in the =nited 5tates 15entencing Pro+ect, 2: of 2 2 million is <<'000' %hich means that if %e adopt the 5entencing Pro+ect/s most conser"ati"e figures there are still o"er ;0'000 innocent people behind bars in the =nited 5tates !o% does this bear on the discussion7 If an indi"idual is not guilty of the crime %ith %hich he is accused' he faces a terrible dilemma Does he face a +ury and ta&e his chances7 3r does he plead guilty to a lesser offense' figuring that if he is going to go to prison' he might as %ell ser"e as little time as possible7 A full trial holds out the innocent person/s only hope for +ustice But if a person cannot afford an e#pensi"e la%yer' his confidence in this process may be undermined to the point %here he %ill ta&e a plea (he process of plea bargaining' then' undermines our confidence that the confession has not' in some %ay' been coerced Plea bargaining is incredibly common !o% common7 According to the American Bar Association' )In most +urisdictions it resol"es most of the criminal cases filed* 1American Bar Association, I ha"e sho%n %hat might be in it for the defendant' but %hat is in it for the prosecution7 According to the American Bar Association' it comes do%n to time' money' and caseload (his' I belie"e' is one of the most nefarious reasons It forms the core of my strongest ob+ection to the process of plea bargaining 9ot surprisingly' it is also one of the more contentious ob+ections' to %hich any number of counter ob+ections could be suggested $hy %ould I ob+ect to the prosecution managing its caseload7 =ltimately' I belie"e that there are far too many la%s on the boo&s' %hich has resulted in too many of our citi-ens being criminali-ed for beha"ior %hich ought not be criminal I am not' of course' arguing for this (heir is not the space to consider reasons of this sort I mention it' not as an argument' but merely to sho% my moti"ations (o the e#tent that the reader shares my assumption that there are far too many people in prison in American society' then to that same e#tent this argument %ill

Castaneda ; seem plausible (he 5entencing Pro+ect has pointed out that the =nited 5tates has' by far' the largest percentage of its population in prison 14acts About Prisons, (he plea bargaining process is the method by %hich society is enabled to criminali-e beha"ior to the e#tent it has' inasmuch as it is the process that enables prosecutors to carry such a high "olume of case%or& $ithout such a tool' prosecutors %ould either ha"e to manage many fe%er cases' or else the infrastructure of the +ustice system %ould ha"e to be e#panded (here is a sort of natural limit to ho% many cases our courts can hear if e"ery case goes to trial (here are' after all' only so many courtrooms and +udges' and it seems to me that there is also a limit to ho% often people %ill be %illing to ser"e on +uries If e"ery case %ent to trial' our courts %ould be able to hear far fe%er cases (he result of this %ould be that fe%er people %ould be tried' and our prosecutors %ould be forced to prioriti-e their cases 5ince they could not try all of their cases' they %ould tend to focus on trying only the most egregious cases 5o %e %ould ha"e much greater confidence that the people that are incarcerated truly deser"e to be incarcerated (o be fran&' I "ie% this as a positi"e feature of my proposal that plea bargaining should be discontinued But it might be ob+ected that' rather than being positi"e' such a de"elopment %ould be a strong negati"e It might be ob+ected that if prosecutors could handle far fe%er cases' then far more criminals %ould be out on the streets 2ore than that' it might be ob+ected that the &no%ledge that only egregious crimes %ould be prosecuted %ould amount to incenti"i-ing less egregious crimes Crimes such as shoplifting might become far more common as indi"iduals reali-e that they are "ery unli&ely to be prosecuted Could this not lead to a culture of la%lessness7 I %ant to ma&e t%o broad points that respond to that challenge 4irst' I %ant to ma&e it clear that nothing I ha"e said should be construed as promoting la%lessness (hat is a radical

Castaneda > misrepresentation of my "ie% If there truly arri"es an epidemic of' say' shoplifting' then I ha"e no doubt that society %ill respond to meet that challenge =nder my proposal' there %ould be nothing to pre"ent society from constructing ne% courthouses' hiring ne% +udges' and impressing more people into +ury ser"ice to meet the challenges of the shoplifting epidemic But I %ant to point out that these things do ha"e a cost' both social and financial If %e tolerate the le"el of crime that %e currently ha"e' it is because %e are un%illing to hire a policeman to stand on e"ery street corner (here is no reason that %e should thin& about our +ustice system in any other %ay I am suggesting that it is absolutely fine for society to tal& about crime in terms of social tradeoffs It is acceptable' for e#ample' for society to say that they %ill hire more +udges and build ne% courthouses to meet their current supply of a specified crime It is acceptable for society to prioriti-e the prosecution of certain crimes o"er others (hose sorts of actions are %ithin the rights of a society But %hat I am suggesting is that one method that is emphatically not %ithin society/s rights is to secure a desired goal by per"erting +ustice 5ince plea bargaining per"erts +ustice' it is an unacceptable method of controlling crime' e"en if effecti"e If society %ants to pay the social costs to pre"ent certain types of crime within the bounds of justice' it may do so But I find it unacceptable for society to loo& for a cheap %ay out by failing to meet the strictures of +ustice (he second point is rather to deny the premiss that there is some connection bet%een "igorous prosecution and a la% abiding society: I remain uncon"inced that a society that fails to enforce e"ery la% %ith e8ual "igor %ill descend into la%lessness 2ost people I &no% do not commit "ery many crimes' and the reason they do not do so may ha"e nothing to do %ith the fact that those crimes are )illegal* It seems plausible that their compliance has e"erything to do %ith the fact that those illegal acts are also antisocial (here are many differing "ie%s of human nature I do not %ish to ta&e a stand in this

Castaneda ? small essay on %hich of these "ie%s are correct $hat I %ill note is that those %ho conclude that less stringent prosecution %ill in"ariably lead to a hefty increase in crime are assuming a fairly pessimistic "ie% of human nature' a "ie% %hich is not necessarily in e"idence I cannot' of course' insist that any particular person gi"e up his fa"ored "ie% of human nature But I can' at least' insist that he be consistent If a person holds a pessimistic "ie% of human nature' then that "ie% ought to hold all the %ay do%n If a person assumes that people in general %ill tend to commit crimes if they thin& they can get a%ay %ith it' then that same pattern ought to apply to one/s siblings' one/s ne#t door neighbors' one/s parents' one/s children' etc And yet' I cannot help but notice that %hen indi"iduals say that )people* %ill commit crimes if they thin& they can get a%ay %ith it' it seems that the interlocutor "ery seldom has people %ho are close to him in mind' but rather some faceless un&no%n people %hose moti"es seem constantly in 8uestion despite the fact that the indi"iduals in 8uestion are other%ise completely un&no%n I ha"e assumed' then' that +ustice has at least t%o components' the appropriateness of the punishment to the crime' and the near6certainty of the guilt of the person being punished I ha"e sho%n that plea bargaining effecti"ely undercuts both conditions of +ustice I ha"e sho%n ho% it is neither in the interests of +ustice for "ictims of crimes' nor in the interests of innocent people %ho are accused of crimes 4urther' I ha"e sho%n ho% the state/s usage of the process is itself a )shortcut* of sorts' used to try to achie"e societal goals at a financial bargain 4or' if society %anted to achie"e its current punishment goals' it %ould need to in"est in much more legal infrastructure $hile such a goal is understandable' I %ould argue that the per"ersion of +ustice has been the unfortunate method by %hich %e ha"e chosen to achie"e these societal goals' calling the legitimacy of the results into doubt

Castaneda @ $or&s Cited )4acts About Prisons and Prisoners * Sentencing Project. 0uly' 2013 Accessed 11 Dec 2013 Ahttp:BB%%% sentencingpro+ect orgBdocBpublicationsBpublicationsBincCfactsAboutPrisons C0ul2013 pdfD )!o% Courts $or& * American Bar Association. 2013 Accessed 11 Dec 2013 Ahttp:BB%%% americanbar orgBgroupsBpublicCeducationBresourcesBla%CrelatedCeducation Cnet%or&Bho%CcourtsC%or&Bpleabargaining htmlD )!o% many innocent people are there in prison7* Innocence Project. 2013 Accessed 11 Dec 2013 Ahttp:BB%%% innocencepro+ect orgBContentB!o%CmanyCinnocentCpeopleCareC thereCinCprison phpD Sentencing Project. nd' untitled Accessed 11 Dec 2013 Ahttp:BB%%% sentencingpro+ect orgBtemplateBpage cfm7idE10?D