Plea

Volume 4, Number 5
January 2011
Release 1: December 13, 2010
Resolved: In the United States, plea bargaining undermines

the criminal justice system.
PFDebate.com
Copyright © 2010, PFDebate LLC 2
PFDebate.com | Crossfire Briefs January 2011: Release 1: Plea Bargaining
January 2011: Release 1
Crossfire Briefs are published on a weekly basis. This is the first of four rele
ases for the December 2010 topic.
The release draws on general literature. Releases 2, 3, and 4 will draw primaril
y from books and law review
articles.
You will receive an email notification from ShareFile when a new file is availab
le. You have 24/7 access to your
files at http://pfdebate.sharefile.com. The release schedule for the December to
pic is as follows:
Release 1: December 13
Good Luck!
Bob Jordan
PFDebate LLC
Copyright and Distribution
Crossfire Briefs are sold per school. Whether purchased by a school or by an ind
ividual, you may distribute as
many copies as you like for use at your school. You may not distribute Crossfire
Briefs to people who attend
other schools, including other schools in your district.
Contact Information
Email is far and away the best way to contact us. You are likely to receive a re
sponse within minutes.
PFDebate LLC
1325 W. Sunshine St. #203
Springfield, MO 65807-2344
info@PFDebate.com
417-429-2411 (voice message)
877-350-1918 (fax)
PFDebate.com | Crossfire Briefs > General January 2011: Release 1: Plea Bargaini
ng
_______. The Topic In A Nutshell.
Time in 1978,
Is Plea Bargaining a Cop-Out? Time. August 28, 1978. http://www.time.com/time/prin
tout/0,8816,916340,00.html.
Accessed December 5, 2010.
Plea bargaining is as widely criticized as it is prevalent. Defendants claim the
y are railroaded into abandoning their right to
a fair trial by zealous prosecutors who "overcharge" them and then agree to redu
ce the charge in exchange for a guilty
plea. The public, on the other hand, complains that criminal defendants get off
too lightly. In plea bargaining, armed robbery
often becomes unarmed robbery (this is known as "swallowing the gun"), and burgl
aries by night miraculously become
the lesser crime of burglary by day.
Maich in 2007,
Steve Maich *Business Columnist+. The Morality of Copping a Plea. Macleans.ca. Jul
y 9, 2007. http://www.macleans.ca/
homepage/magazine/article.jsp?id=0&content=20070709_107136_107136. Accessed Dece
mber 8, 2010.
We know that plea bargaining is legal. The U.S. Supreme Court explicitly sanctio
ned the practice in the late 1970s. The
Supreme Court of Canada in 1987 criticized the notion that justice can be "purch
ased at the bargaining table," but nonetheless
refused to prohibit, or even limit, such deals. We also know it's effective both f
or accused criminals looking to
minimize their punishment, and for prosecutors coping with the torrent of cases
sloshing through the courts. But is it
right? Are these bargains moral? Those are questions few bother to ask anymore,
says John Langbein, a professor of law
and legal history at Yale, and an outspoken critic of the system.
Maich in 2007,
mber 8, 2010.
The architects of our democracies would have blanched at that kind of centralize
d power, but it has undeniably yielded
efficiency. Most of the time, it even manages to yield something resembling just
ice. But is it a wise decision to trade the
liberties and rights offered by our constitutions for the sake of expediency? Ju
st as importantly, are the compromises required
to entrench such a system morally defensible? Perhaps it'd be best to ask the pe
tty criminal spending his life behind
bars in Kentucky for forging a US$88.30 cheque. Or the admitted child killer now
free and living with her own child
somewhere in Quebec. Or better yet, if the Hollinger accused are sent to jail fo
r decades, ask David Radler, in two years'
time, when he's back running his little newspaper empire and spending weekends b
y the pool in Palm Springs.
ng
_______. Definitions Of Plea Bargaining .
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific
Legal Foundation+. In Defense of Plea
Bargaining. Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/reg
v26n3/v26n3-8.pdf.
A plea bargain is a contract with the state. The defendant agrees to plead guilt
y to a lesser crime and receive a lesser sentence,
rather than go to trial on a more severe charge where he faces the possibility o
f a harsher sentence.
Lynch in 2003,
Timothy Lynch *Director of the Cato Institute s Project on Criminal Justice+. The C
ase Against Plea Bargaining.
Regulation. Fall 2003. p. 24. http://www.cato.org/pubs/regulation/regv26n3/v26n3
-7.pdf. Accessed December 5, 2010.
Plea bargaining consists of an agreement (formal or informal) between the defend
ant and the prosecutor. The prosecutor
typically agrees to a reduced prison sentence in return for the defendant s waiver
of his constitutional right against selfincrimination
and his right to trial. As one critic has written, The leniency is payment to a d
efendant to induce him or her
not to go to trial. The guilty plea or no contest plea is the quid pro quo for t
he concession; there is no other reason.
ng
_______. Plea Bargaining Has A Long History.
Blankenship in 2003,
Gary Blankenship *Senior Editor+. Debating the Pros and Cons of Plea Bargaining. T
he Florida Bar News. July 15, 2003.
Gale: Academic OneFile. Accessed December 5, 2010.
Miami attorney Scott Fingerhut presented facts and background on plea bargaining
, noting it has been around for hundreds
of years. After all, he noted, the English offered Joan of Arc a deal: Recant th
at she heard God command her to lead
the French and they would not burn her at the stake.
Olin in 2002,
Dirk Olin *National Editor at The American Lawyer+. Crash Course; Plea Bargain. Th
e New York Times Magazine.
September 29, 2002. http://www.nytimes.com/2002/09/29/magazine/the-way-we-live-n
ow-9-29-02-crash-course-pleabargain.
html. Accessed December 5, 2010.
The plea bargain was a prosecutorial tool used only episodically before the 19th
century. ''In America,'' Fisher says, ''it can
be traced almost to the very emergence of public prosecution and public prosecutio
n, although not exclusive to the U.S.,
developed earlier and more broadly here than most places.'' But because judges,
not prosecutors, controlled most sentencing,
plea bargaining was limited to those rare cases in which prosecutors could unila
terally dictate a defendant's sentence.
''Not until the crush of civil litigation brought on by the explosion of persona
l-injury cases in the industrial era did
judges begin to appreciate the workload relief plea bargaining promised.'' In ot
her words, plea bargaining is arguably another
outgrowth of late-19th-century industrialization.
1633: Galileo gets house arrest from the Inquisition in exchange for his recitin
g penitential psalms weekly and recanting
Copernican heresies.
1931: Al Capone brags about his light sentence for pleading guilty to tax evasio
n and Prohibition violations. The judge then
declares that he isn't bound by the bargain, and Capone does seven and a half ye
ars in Alcatraz.
1969: To avoid execution, James Earl Ray pleads guilty to assassinating Martin L
uther King Jr. and gets 99 years.
1973: Spiro Agnew resigns the vice presidency and pleads no contest to the charg
e of failing to report income; he gets
three years' probation and a $10,000 fine (roughly one-third of the amount at is
sue).
1990: Facing serious federal charges of insider trading, Michael Milken pleads t
o lesser charges of securities fraud; soon
after, his 10-year sentence is reduced to 2 years.
Defenders of American-style plea bargaining point out that its utility is proved
by other countries' increasingly explicit
adoption of the U.S. model. Once forbidden in most of Europe and technically ban
ned in Japan, plea bargaining has steadily
crept into many countries' systems during the past generation. ''In Germany, the
y say it's still controversial,'' Alschuler
says, ''but most observers say it happens there now. And Italy went so far as to
pass federal legislation formally legalizing
it.'' The Japanese claim that the practice is horrible, but then, Alschuler note
s, ''they make a very big deal about repentance
for your crimes.'' That need to put remorse on display, which can't exactly be a
legal sentence, means that ''it's hard
to deny that they have something like it.'' Scandinavian countries largely maint
ain prohibitions against the practice.
PFDebate.com | Crossfire Briefs > PRO January 2011: Release 1: Plea Bargaining
_______. Most Criminal Convictions Are The Result Of Plea Bargains.
PBS.org in 2004,
Introduction for The Plea on Frontline. June 17, 2004. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/synopsis.html. Accessed D
ecember 7, 2010.
It is the centerpiece of America's judicial process: the right to a trial by jur
y system that places a defendant's fate in the
hands of a jury of one's peers. But it may surprise many to learn that nearly 95
percent of all cases resulting in felony convictions
never reach a jury. Instead, they are settled through plea bargains in which a d
efendant agrees to plead guilty in
exchange for a reduced sentence.
"The real American justice system is unlike anything depicted on Law & Order and
Court TV," says producer Ofra Bikel. "I
know I was stunned when I realized that only about 5 percent of all felony convi
ctions result from jury trials. The rest are
settled by plea bargains. And these deals aren't always to the defendant's advan
tage."
Frontline in 2004,
The Plea . Frontline. June 17, 2004. Transcript. Written, Produced, and Directed by
Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed Dec
ember 7, 2010.
NARRATOR: The 6th Amendment to the Constitution guarantees every citizen the rig
ht to be judged by a jury of his or her
peers.
JUDGE: Do you want to give up those guaranteed rights and proceed to plead guilt
y today?
NARRATOR: Yet about 95 percent of all people who are convicted of felonies acros
s the country give up that right and
plead guilty. Most of these guilty pleas involve bargains in which the accused p
leads guilty in exchange for a lesser sentence
or a reduced charge.
Sandefur in 2003,
Timothy Sandefur *Lead Attorney of the Economic Liberties Project at the Pacific
Legal Foundation+. In Defense of Plea
Bargaining. Regulation. Fall 2003. p. 28. http://www.cato.org/pubs/regulation/reg
v26n3/v26n3-8.pdf.
Plea bargaining is enormously popular with prosecutors; according to researcher
Douglas Guidorizzi, something like 90
percent of criminal cases end in a plea bargain.
Time in 1978,
Is Plea Bargaining a Cop-Out? Time. August 28, 1978. http://www.time.com/time/prin
tout/0,8816,916340,00.html.
Ideally anyone charged with a crime in the U.S. is entitled to his day in court.
The litany of rights is familiar: the state must
prove guilt beyond a reasonable doubt, the accused has the right to be tried by
a jury of his peers, and an impartial judge
must carefully weigh the facts before handing down a sentence.
The reality, as anyone involved with criminal justice can attest to, is far diff
erent. In the vast majority of cases, the accused
has no trial. His "day" in court is the few minutes it takes him to plead guilty
. "Here we have an elaborate jury trial system,
and only 10% of the accused get to use it," says Colorado Law School Professor A
lbert H. Alschuler. "That's like solving
America's transportation problems by giving 10% Cadillacs and making the rest go
barefoot." For most defendants, justice
is done by way of a deal: a guilty plea in exchange for the promise of reduced c
harges or a lighter sentence. Bargains are
generally struck with the prosecutor; the judge usually rubber-stamps them.
Olin in 2002,
Dirk Olin *National Editor at The American Lawyer+. Crash Course; Plea Bargain. Th
e New York Times Magazine.
September 29, 2002. http://www.nytimes.com/2002/09/29/magazine/the-way-we-live-n
ow-9-29-02-crash-course-pleabargain.
html. Accessed December 5, 2010.
The Bill of Rights makes no mention of the practice when establishing the fair-t
rial principle in the Sixth Amendment, but
the constitutionality of plea bargaining has been repeatedly upheld, and the bar
gain's basic dynamic is well known to
viewers of pulp TV. In fact, says Albert Alschuler, a University of Chicago law
professor, roughly 90 percent of convictions
occur when the defendant waives the right to trial and pleads guilty. And most o
f those pleas involve a deal that reduces
punishment.
Lynch in 2003,
Plea bargaining has come to dominate the administration of justice in America. A
ccording to one legal scholar, Every two
seconds during a typical workday, a criminal case is disposed of in an American
courtroom by way of a guilty plea or nolo
contendere plea.
Dempsey in 2010,
Christine Dempsey *Reporter+. State Victim Advocate: Too Many Plea Deals. CTnow.co
m. November 19, 2010.
http://www.ctnow.com/news/connecticut/hc-victim-advocate-request-1120-20101119,0
,7907972.story.
More than 95 percent of cases in the state's court system over the past four yea
rs were resolved without a trial, meaning
too many end with plea bargains built on watered-down charges, the state victim
advocate said Friday.
People have died as a result, specifically in domestic violence cases, said the
advocate, Michelle Cruz.
Cruz outlined her concerns in a four-page letter to the state Office of Policy a
nd Management Thursday. She asked for a
study of the number of criminal trials in the state, how long it takes to prosec
ute them, how many cases are resolved with
plea bargains and why.
"There's something seriously wrong," Cruz said.
Her letter said the Danbury judicial district had the lowest percentage of trial
s over four years: 21 trials from July 1, 2006
to June 30, 2010, only 0.87 percent of its dispositions.
The highest percentage was in the Waterbury judicial district, where 122 trials
accounted for 8.68 percent of dispositions,
she wrote.
Although some sentences arise from plea deals for valid reasons, Cruz wrote, "th
e plea bargain process has been exploited."
Defendant often agree to plead guilty to a lesser charges in order to avoid a tr
ial. There are times when plea bargains are
legitimate, Cruz said such as if the state lacks evidence or wants to avoid havi
ng a child testify against someone who has
sexually abused him or her.
Maich in 2007,
mber 8, 2010.
It's an amazing thing for a person to confess to a serious crime to accept the sca
rlet letter of a criminal conviction and
give up their freedom willingly, without a fight, passing up the constitutional
guarantee of due process.
And yet, every day in Canada and the United States, thousands of accused do just
that throw up their hands and say "I
did it." According to Department of Justice figures, roughly 90 per cent of crim
inal cases in the United States end in a guilty
plea, the vast majority of which have been negotiated with prosecutors in return
for a lesser charge, a lighter sentence, a
more comfortable prison, or an agreement to testify against someone else. A 1997
Queen's University study found that
plea bargaining in Canada is just as common, and works in much the same way.
It's not just prevalent. The plea bargain has become the primary means of dispen
sing justice in North America. And testimony
extracted from conspirators-turned-co-operating-witnesses has become a central f
eature of nearly every major corporate
crime trial in the modern era, from Enron, Tyco and WorldCom, to the current pro
secution of Conrad Black, which
rests heavily on the testimony of David Radler, who agreed to plead guilty in ex
change for a sentence of 29 months, to be
served in Canada.
But there are too many "administrative" plea bargains, she said.
"After three years of being in Connecticut looking at cases, what I see is a pat
tern of defendants who are allowed to plea
to a more lenient charge that often doesn't resemble the conduct," said Cruz, wh
o was a prosecutor in Massachusetts. The
lesser, substituted charge "doesn't reflect the seriousness of the offense," she
said.
Liptak in 2007,
Adam Liptak *Supreme Court Correspondent+. Cases Keep Flowing In, But the Jury Po
ol is Idle. The New York Times.
April 30, 2007. http://select.nytimes.com/2007/04/30/us/30bar.html. Accessed Dec
ember 8, 2010.
In criminal cases, the vast majority of prosecutions end in plea bargains. In an
article called Vanishing Trials, Vanishing
Juries, Vanishing Constitution in the Suffolk University Law Review last year, a
federal judge questioned the fairness of
the choices confronting many criminal defendants.
Those who have the temerity to request the jury trial guaranteed them under the U
.S. Constitution, wrote the judge,
William G. Young of the Federal District Court in Boston, face savage sentences th
at can be five times as long as those
meted out to defendants who plead guilty and cooperate with the government.
The movement away from jury trials is not just a societal reallocation of resour
ces or a policy choice. Rather, as Judge
Young put it, it represents a disavowal of the most stunning and successful exper
iment in direct popular sovereignty in all
history.
Indeed, juries were central to the framers of the Constitution, who guaranteed t
he right to a jury trial in criminal cases,
and to the drafters of the Bill of Rights, who referred to juries in the Fifth,
Sixth and Seventh Amendments. Jury trials may
be expensive and time-consuming, but the jury, local and populist, is a counterw
eight to central authority and is as important
an element in the constitutional balance as the two houses of Congress, the thre
e branches of government and
the federal system itself.
Liptak in 2007,
Adam Liptak *Supreme Court Correspondent+. Cases Keep Flowing In, But the Jury Po
ol is Idle. The New York Times.
April 30, 2007. http://select.nytimes.com/2007/04/30/us/30bar.html. Accessed Dec
ember 8, 2010.
In 2004, in the process of revitalizing the role of the jury in criminal cases,
Justice Antonin Scalia of the Supreme Court
wrote that there were good arguments for leaving justice entirely in the hands of
professionals. But that is not the theory
of the Constitution, he continued, which enshrined the common-law ideal of limite
d state power accomplished by
strict division of authority between judge and jury.
The jury trial is a distinctively American tradition in a cultural sense, too. A
lmost all civil jury trials in the world take place
here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul
Butler of George Washington University calls
as fundamental a part of our culture as jazz or rock n roll, is dying.
Lynch in 2003,
Given the Fifth Amendment s prohibition of compelled self-incrimination and the Si
xth Amendment s guarantee of impartial
juries, one would think that the administration of criminal justice in America w
ould be marked by adversarial trials
and yet, the opposite is true. Fewer than 10 percent of the criminal cases broug
ht by the federal government each year
are actually tried before juries with all of the accompanying procedural safegua
rds noted above. More than 90 percent of
the criminal cases in America are never tried, much less proven, to juries. The
overwhelming majority of individuals who
are accused of crime forgo their constitutional rights and plead guilty.
The rarity of jury trials is not the result of criminals who come into court to
relieve a guilty conscience or save taxpayers
the costs of a trial. The truth is that government officials have deliberately e
ngineered the system to assure that the jury
trial system established by the Constitution is seldom used. And plea bargaining
is the primary technique used by the government
to bypass the institutional safeguards in trials.
_______. The Problems With Plea Bargaining Are Systemic, Not Episodic.
Lynch in 2003,
Sandefur argues that because individuals can waive many of their constitutional
rights, they can also sell their rights.
Even if that argument had merit, it is not the law. But, more importantly, one s
uspects that it is not the law because the
argument lacks merit. Imagine four people who are charged with auto theft. One d
efendant pleads guilty to the offense
and receives three years of jail time. The second defendant insists upon a trial
, but sells his right to call his own witnesses.
After conviction, he receives four years. The third defendant insists on a trial
, but sells his right to be represented by his
famous attorney-uncle, F. Lee Bailey. Instead, he hires a local attorney and, in
addition, sells his right to a speedy trial.
After conviction, he receives five years. The fourth insists upon a trial, prese
nts a rigorous but unsuccessful defense and,
after conviction, receives a prison sentence of 10 years. Are the disparate puni
shments for the same offense sensible? The
courtroom just does not seem to be the proper place for an auction and haggling.
The constitutional defect with plea bargaining is systemic, not episodic. The ra
rity of jury trials is not the result of some
spontaneous order spawned by contract negotiations between individuals.
Lynch in 2003,
Thomas Jefferson famously observed that the natural progress of things is for lib
erty to yield and government to gain
ground. The American experience with plea bargaining is yet another confirmation
of that truth. The Supreme Court unleashed
a runaway train when it sanctioned plea bargaining in Bordenkircher v. Hayes. De
spite a steady media diet of titillating
criminal trials in recent years, there is an increasing recognition that jury tr
ials are now a rarity in America and
that something, somewhere, is seriously amiss. That something is plea bargaining.
As with so many other areas of constitutional law, the Court must stop tinkering
around the edges of the issue and return
to first principles. It is true that plea bargaining speeds caseload disposition
, but it does so in an unconstitutional manner.
The Framers of the Constitution were aware of less time-consuming trial procedur
es when they wrote the Bill of Rights,
but chose not to adopt them. The Framers believed the Bill of Rights, and the fr
eedom it secured, was well worth any
costs that resulted. If that vision is to endure, the Supreme Court must come to
its defense.
_______. Getting It Right Most Of The Time Is Unacceptable In A Free Society.
Langbein in 2004,
John Langbein *Professor of Law & Legal History at Yale University+. The Plea . Fro
ntline. June 17, 2004. Transcript.
Written, Produced, and Directed by Ofra Bikel. PBS.org.
http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/script.html. Accessed Dec
ember 7, 2010.
I do not contend that our jails are stuffed with people who pleaded to things th
at they didn't do. I think most people who
are prosecuted of serious crimes are guilty of at least what they're charged wit
h and ought to have serious criminal sanctions
attached. But the problem is, "most" isn't the way we do business in a free soci
ety that cares about individual rights
and individual liberty.
_______. Defendants Do Not Freely Trade Their Right To A Jury Trial.
Lynch in 2003,
Sandefur s defense of plea bargaining repeatedly returns to the idea that criminal
defendants have the right to make a
contract, as in other free-trade situations. But plea bargaining is not free trad
e. It is a forced association. Once a person
has been charged with a crime, he does not have the option of walking away from
the state.
_______. On Balance, Plea Bargaining Does Not Help Defendants (Prisoner s Dilemma)
.
Bar-Gill & Ben-Shahar in 2010,
Oren Bar-Gill *Professor of Law and Co-Director for Law, Economics, and Organiza
tion at the New York University School of
Law+ and Omri Ben-Shahar *Professor of Law, University of Chicago Law School+. Th
e Prisoners (Plea Bargain) Dilemma.
Regulation. Spring 2010. p. 42. http://www.cato.org/pubs/regulation/regv33n1/reg
v33n1-4.pdf.
The policy debate over plea bargaining has focused in large part on one question
: Do plea bargains help defendants or
hurt them? Proponents of plea bargaining argue that it is good for defendants. T
he defendant, so the argument goes, can
always choose not to plea and instead go to trial. If a defendant chooses to acc
ept a plea bargain, then the deal must be
better for the defendant than going to trial. Plea bargains add an option, and m
ore options are better than fewer. Against
this view, a prominent opposition highlights the coercive features of the plea b
argaining process. Defendants choice is not
free, but rather a response to powerful constraints and threats from prosecutors
. In the same way that a contract reached
under duress is not beneficial to the coerced party, plea bargains cannot be gen
erally viewed as an improvement.
Bar-Gill & Ben-Shahar in 2010,
Oren Bar-Gill *Professor of Law and Co-Director for Law, Economics, and Organiza
tion at the New York University School of
Law+ and Omri Ben-Shahar *Professor of Law, University of Chicago Law School+. Th
e Prisoners (Plea Bargain) Dilemma.
Regulation. Spring 2010. p. 45. http://www.cato.org/pubs/regulation/regv33n1/reg
v33n1-4.pdf.
We argue that plea bargains do not always represent improved choice for defendan
ts, but rather a coordination trap.
Without plea bargains, many defendants would not face the risk of trial; they mi
ght not be charged at all. Defendants are
charged, and are threatened with trials, only because the prosecutor expects the
m to plea; they would not have been
charged otherwise. Our analysis therefore qualifies one prominent argument in fa
vor of plea bargains, which rests on the
logic that it makes everyone better off.

Plea

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Plea

Uploaded by

Copyright:

Available Formats

Volume 4, Number 5

Resolved: In the United States, plea bargaining undermines

You might also like