Plea bargaining essay PDF

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Plea bargaining remains to be a controversial issue which not only impacts jurisdictions globally but is imperative to the efficiency of the three components within criminal justice systems, depicted in a Fair Trials report which promoted plea bargains to be an efficient form of justice after a 300% increase in plea bargains worldwide since 19901. Heumann2 defined plea bargaining as the ‘process by which a defendant waives their right to trial in exchange of criminal charges or lesser degree of punishment’3. Proponents of plea bargaining argue the main advantages to be promoting administrative efficiency and protecting the victim. Whilst legal scholars observe it to be an unjust system which promotes the wrongful conviction of the innocent and facilitates the guilty remaining unpunished. This essay seeks to argue that cost-efficiency and the constructed interests of the victims may have outweighed both the rights of the innocent and the victims, bringing the integrity of the criminal justice system into critical focus. All of which will be incorporated in order to analyse whether the abolition of plea-bargaining is necessary or further damaging for the criminal justice system and society.

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Those who reject the hypothetical abolition of plea-bargaining endorse the practice on the grounds of administrative efficiency4, illustrated in trial avoidance and reduction of high caseloads. Published in the Bureau of Justice assistance5, Devers enlightened to the fact that “ some argue that the plea-bargaining process is more cost efficient than having all cases go to trial”6. Trials are universally known for being time- consuming, laborious and costly in nature despite carrying no guarantee of success for both the victim and the defendant. An example of this being the fact that ‘to try a simple burglary case would take from 1 to 4 days and require the presence of the judge, bailiff, clerk, defense attorney, prosecutor, and court reporter”. This is encompassed in the case of Palmer7 where Chief Justice Berger commented on the potential effects of abolishing plea bargaining; stating that ‘a reduction from 90 percent to 80 percent in guilty pleas requires the assignment of twice the judicial manpower and facilitiesjudges, court reports, bailiffs, clerks, jurors and court rooms’8. Avoiding trials for routine cases, specifically those that are characterised by weak evidence, saves the Criminal justice system time and resources that can be allocated to cases which demand more attention or expertise. Administrative efficiency was first articulated by Easterbrook9, who attributed the number of convictions obtained and the time invested to the success of plea bargains. This is furthered by his contention that without plea bargains the system will lack the resources to try all of the accused10, amounting to a drastic reduction in convictions and ultimately a 4

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9 10 Frank H. Easterbrook, Plea Bargaining as Compromise, at 101 col. 2.

minimised capacity to deter. This illustrates the importance of plea bargaining as not only an apparatus of facilitating justice but also maximising the rate of conviction whilst preserving time and money.

Conversely, academics assert that Plea bargaining should be abolished on the grounds that it generates undue pressure to the extent that innocent defendants may be induced to plead guilty. This is not a modern phenomenon, having been widely conceptualised in legal literature as the ‘innocence problem’11, inherent in any justice system which offers guilty pleas. Within ‘The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem 12’, Dervin and Edkins13 illuminated that innocent defendants may be more likely to accept plea bargains when faced with potentially long sentences, this is particularly relevant to the USA where Death penalty is still a liable

punishment for criminal behaviour. A related

study conducted on a group of students revealed that

‘more than half of the innocent participants were willing to falsely admit guilt in return for a perceived benefit’14. Dervan and Edkins summarised the findings to ‘bring new insight to the long-standing debate of the innocence problem and ignites a fundamental constitutional

11 Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve 12 L Dervan, & V Edkins . The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem. 2012). 13 ibid

14 The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem , Lucian E. Dervan Vanessa A. Edkins Ph.D.

question’15. This is reflected by Drizin and Richard16, finding that false confessions play a role in 25% of wrongful convictions. Bar-Gill and Gazal17 argued that the breadth of the prosecutors discretion in negotiating plea bargains directly affects the magnitude of the ‘innocence problem’ unfettered discretion translates into more plea bargains accepted by innocent defendants’18 depicting the notion that prosecutors manage cases pursuant to their discretionary powers. Evidence similar to this brings the integrity of the criminal justice system to a critical forefront, namely the notion that the primary objective lies in a conviction of the innocent rather than seeking justice for the victims. Whilst plea-bargaining facilitates exponentially growing conviction rates; the ‘innocence problem’ begins to dispute any arguments of expediency offered by proponents of plea- bargaining, posing the question of how can an increase in convictions be interpreted as an advantage when it knowingly undermines the fundamental principles to criminal justice system? As a system which operates to protect the innocent, enacted in jurisdictions globally, this evident failure to do so renders Plea bargaining to be procedurally unjust in nature, by which is disadvantageous to the innocent and society as a whole. Moreover, proponents of abolishing plea bargaining suggest a main disadvantage to be the protection of the Guilty and the subsequent minimising effect of deterrent punishment.

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Adopting the philosophy of crime control19, those who have committed a crime must be punished accordingly to protect society and satisfy deterrence. Yet, the nature of plea bargains can be seen to undermine the ability to appropriately punish the deserving. Research conducted by Uhlman and Walker (1979) held that ‘ the research on plea bargaining would lead us to believe that defendants who plead guilty are more likely to be sentenced on a lesser offense, less likely to receive a jail sentence and more likely to receive a lighter sentence than those found guilty by a judge or jury. The literature abounds with suggestions and evidence that the plea is a bargain’20 . This is epitomised in the specific case of Peverett21, where a former headmaster faced sixteen charges of indecent assault of eleven pupils. The counsel reached a charged bargain, where seven of these assaults were dropped and the motivation was described as ‘desire to express position of power over the children’ as opposed to sexual gratification. This case is a testament to the advantageous nature of plea-bargain deals, with this in critical focus it poses the question how a process, which rewards criminal behaviour, exists within a system that endorses the use of deterrent punishment. In ‘Plea Bargaining; an unnecessary evil’22 Fine comments that ‘ Deterrence is of course weakened as the criminal

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brags about his deal and spreads around the community that the law has no teeth’23 further concluding that ‘plea bargaining teaches the criminal that Judges, and Lawyers can ignore the law when it is expedient to do so’24. This depicts Plea-bargaining to be a system by which rewards the guilty instead of punishes, undermining the authority of the law and minimising the deterring effect of punishments. Another advantage of the Plea-bargaining process is arguably the protection of victims. Through this negotiating conviction, victims are able to elude the trial which saves them from having to present their case in court and face their perpetrator. Statistics illustrate the damaging and traumatic impact of revictimization in court, namely in cases concerning sexual violence. The culture of ‘he said she said’ makes it increasingly harder for rape accusations to amount to conviction, therefore the very nature of plea bargaining allows the victims to circumvent cross examination and testifying whilst providing a certainty of punishment. This illustrates plea-bargains to be successful for both the victims and the defendants, disproving the claims that it is ‘wholly flawed system’ and offering a specific context it is appropriate to implement.

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On the contrary, advocates for the abolition of plea bargains argue that it is a system which neglects the interests of the victims. Whilst academics have recognised avoidance of trial to be in the better interests of the victims this is not the universal case. As a society we should not attempt to define or dictate what ‘justice’ means to the victims. This is illustrated in the victim voice survey25, which witnessed that 75% of the sample rated ‘having the opportunity to have a voice heard in court’ as being very important and 18% as being fairly important. Interviews conducted by the commissioner for victims and witnesses reported that many victims valued the victim personal statement as it enabled them the opportunity to express to the court and the defendant the way in which the crime affected them. Depriving the victim of their entitlement to ‘reliving the victimisations of court’ can be damaging especially in cases where they attempt to utilise proceedings as a means of empowerment and reclaiming trauma, exemplified by Zehr who maintained that ‘they need restoration of power because the offender has taken the power away from them’26. This is encapsulated in the case of Peverett27, where five victims who attended court ready to give evidence , were said to be stunned by a non-custodial outcome. One of the victims questioned stated that ‘ this trial was going to be our chance … I’m going to tell these twelve good men and women of the jury

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exactly what you did to me’28. Reflected in the evidence provided by the survey and questionnaire statistics, it is clear that the Plea-bargaining process focuses on achieving quick disposals of cases at the detriment of the victims’ right to personal justice, proving it to be an unjust system and especially disadvantageous to the victims. In answer to the thesis posed it is clear that the disadvantages of plea bargaining far outweigh the advantages, with foregoing analysis illustrating plea-bargaining to be a procedurally unjust system which fails to balance the interests of the courts, the victims and the defendant; all of which undermine the fundamental purpose of Criminal justice systems. Yet, Howes29 study indicated that ‘ all options for eliminating plea bargaining are infeasible in practice’ ;therefore, I advocate for a reform of the system which will; facilitate greater justice for those deserving, particularly the innocent and the victims, and impose greater sanctions on the guilty which is proportionate to the crime committed in attempt to maximise deterrence. Whilst this solution is not all encompassing, nevertheless it proposes a start to further reform in a historically entrenched system.

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