plea bargaining

Running head : Plea Bargaining

Plea Bargaining

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Abstract

Plea bargain is primarily a negotiation between the defendant and his /her attorney on one side and the prosecutor on the other , in which the defendant agrees to plead guilty ' or no contest ' to some crimes , in return for some benefits in the shape of reduction of the severity of the charges , or dismissal of some of the charges etc Plea-bargaining has been a method used for early settlement of cases in the courts of the United States since the independence . Over

the period of time , it has persisted in our society and has rather gained more acceptability . There are however some quarters who have serious reservations with this provision of law . Plea bargaining has various advantages and disadvantages . This has been designed to focus on the process of plea-bargaining , reasons for its pervasiveness in the society followed by the benefits it presents to the defendant and the prosecutor . Towards the end , various disadvantages of the plea bargaining will be analyzed before a thought provoking conclusion

Plea Bargaining

United States is a great country . It is the country , where individual rights are granted , respected and protected . People belonging to any segment of society enjoy equal opportunities and privileges , and are treated without any discrimination . Basic component of any civilized society is the formulization and unilateral implementation of the codes of conduct or we can call it law of the land . People not adhering to these laws have to be punished to create deterrence and preclusion Simultaneously , innocents have to be protected . Whether guilty or innocent , every individual has been provided with equal opportunities to defend himself /herself . Unlike many other countries , the citizens of United States are blessed with the Bill of Rights that grants some privileges until proven guilty . Therefore , a person involved in any case has to be treated as innocent until proven guilty . It also gives a person rights to a fair and speedy trial as well as the right to representation during trial

There are a number of provisions in the law that pledge a fair and speedy trial . Plea Bargaining is one such provision , which although has no mention in the Bill of Rights , but has been held as constitutional is plea-bargaining . The history of plea bargaining can be traced back to the era of independence . In the 1800 's , plea-bargaining was entering a guilty plea in exchange for a lesser sentence . It was however used rarely until the crime grew intensely during the industrial era , and it became difficult for the courts to handle massive number of cases (Rabe Champion , 2002 . It has prevailed since then and has become an acceptable norm in the court houses . Today , plea bargaining has become a significant part of the criminal justice system in the United States . A vast majority of criminal cases in the courts are settled by plea bargain rather than by a jury trial . There are numerous advantages and disadvantages associated with this rule of law . An effort has been made in this to scrutinize the plea bargaining by discussing the reasons for its existence , benefits it offers and highlighting its disadvantages

What is Plea Bargaining

In simple terms , plea bargaining is the pre-trial negotiation , which takes place in a criminal procedure . During these negotiations , the defendant either agrees to plead guilty ' or no contest ' to a crime in exchange for certain benefits . Another important element of plea bargaining is that the defendant not only has to plead guilty but also has to reveal information such as location of stolen goods , names of others participating in the crime or admission of other crime (s , such as a string of burglaries . For this cooperation of the defendant , there can be a reduction in charges leveled against the defendant , or dismissal of some of the charges , only after the approval by the judge However , if the judge does not agree , then the plea bargain stands cancelled

There are basically two types of plea bargain . First the charge bargain that occurs when the prosecutor allows a defendant to plead guilty to a lesser charge , or to only some of the charges that have been d against him /her . Second is the sentence bargain that occurs in high pro cases , where the prosecutor does not want to reduce the charges against the defendant

Authorization and Procedure of Plea Bargaining

Plea bargaining is explicitly authorized in the court rules . In federal court , plea bargaining is authorized by subsection (e ) of rule 11 of the Federal Rules of Criminal Procedure . Under rule 11 (e , a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges , recommend to the court a particular sentence or agree not to oppose the defendant 's request for a particular sentence , or agree that a specific sentence is the appropriate disposition of the case . A prosecutor can agree to take any or all of these actions in a plea agreement . Under rule 11 (e , plea bargaining must take place before trial unless the parties show good cause for the delay

Plea bargaining as explained earlier is a pre-trial negotiation that can conclude a criminal case without a formal trial . When it is successful , plea bargaining results in a plea agreement between the prosecutor and defendant . In this agreement the defendant agrees to plead guilty without a trial , and in return the prosecutor agrees to dismiss certain charges or make favorable sentence recommendations to the court . A plea bargain can also be negotiated after an arrest However , plea bargains can be worked out almost any time - from after the arrest , before filing criminal charges , to the time a verdict is reached , even during trial itself ( Procedures for Plea Bargaining 2004 . One key element of the bargain is that the defendant has to reveal additional information such as location of stolen goods , names of the accomplices or admission to other crimes . Most importantly , the conclusion of the deal is subjected to its acceptance by the judge

In most cases , judges do authorize a plea bargain if the defendant makes a knowing and voluntary waiver of his or her right to a trial , the defendant understands the charges , the defendant understands the maximum sentence he or she could receive after pleading guilty , and the defendant makes a voluntary confession , in court , to the alleged crime Even if a defendant agrees to plead guilty , a judge may decline to accept the guilty plea and plea agreement if the charge or charges have no factual basis . It is also highlighted here that the judge does not play any part in the plea bargain discussions between the defendant 's attorney and the prosecutor . Moreover , the prosecutors have discretion whether to offer a plea bargain or not . However , a prosecutor should not discriminate in making or accepting an offer of plea bargain based on an unjustifiable standard such as race , religion , or some other arbitrary classification

Rules Regarding the Breach of Plea Agreement

There can be circumstances where a plea bargain is revoked . If the government breaches a plea agreement , the defendant has the right to withdraw the guilty plea , ask the court to enforce the agreement , or ask the court for a favorable modification in the sentence . The plea bargain is considered to be revoked if a prosecutor who had initially agreed to dismiss a certain charge but later reneges on this promise . In this case , the defendant may withdraw his /her guilty plea . Another important aspect is that when a prosecutor or defendant revokes a plea agreement the statements made during the bargaining period are not admissible against the defendant in a subsequent trial . This rule is basically designed to foster free and open negotiations . It is however noteworthy that a prosecutor may use statements made by the defendant during plea negotiations at a subsequent trial to impeach the defendant 's credibility after the defendant testifies ( Plea Bargain ' 2006 . Bond (1983 ) however expresses serious reservations and states that I agree with the majority that the law of remedies for broken plea bargains needs development and clarification

Why is Plea Bargaining so Pervasive in our Society

Plea bargaining has persisted in our society since long . Despite tough resistance from different segments , it still prevails and has gained deeper ingress in our criminal justice system . According to one estimates , at least 90 percent of all criminal cases never go to trial (Ventura , 2000 . The main contributor to this fact is the out of the court settlements or what we call the outcome of defendant-prosecutor agreements . There are several different reasons for opting for plea bargain . From prosecutor 's perspective , plea bargain helps in reduction of the high volume of cases facing the judicial system . Without plea bargaining the courts would become clogged , thus causing the state to also spend more time and money

We also have to understand that the provision of plea bargain is so pervasive in our society and is being accepted unobtrusively since it suits the judicial system . There may be some factions against it . But the courts do not object to it . The prosecutors respond to it positively and even for the defendants , it offers a lot of incentives . There are various other reasons for surge of plea bargaining in the criminal cases like avoiding uncertainty of a jury trial . With a plea bargain the defendant is given the certainty of receiving a lesser charge or the uncertainty of a jury trial in which the defendant may be found not guilty or found guilty of a more serious charge . Similarly , the prosecutor also gets the certainty of a successful culmination of a case without much hassle . Both the prosecutor and the defendant 's attorney want to succeed . And obviously the plea bargain provides them both with the win-win scenario

Another reason for acceptance of plea bargaining by the prosecutor is that the defendant 's willingness can be obtained to testify for the prosecution in other cases , charges or sentencing in his or her own case may be offered to be lessened if he or she cooperates with the prosecution . In this way , the prosecutor not only wins this case but is also assisted in successful culmination of other cases through the valuable information and support provided by the defendant . In some other cases , prosecutors may go for the bargain if they have a doubt in securing a conviction through a jury trial . This of course is beneficial for both sides to arrange a resolution of the matter without either side taking the chance that the case may go against them if it was to go to trial . Statistics also reveal that prosecutors manage only about 75 percent convictions in the cases that get to trial . So why to take a chance . For the same reason , we find majority of the cases being settled through plea bargaining

Pea Bargaining is a common phenomenon in the criminal justice system since major components of the society like the judiciary and the defendants have no objection to it . A common citizen is also not bothered since the guilty is after all punished , may be for a shorter duration . Moreover , with out the provision of plea bargaining , in the present circumstances where crime rate has sky rocketed , there would have been the requirement of 10 times the more number of courts or without that an ordinary case might have taken years and some times decades to be decided , like it happens in many of the third world countries . We all agree that the justice delayed is justice denied . Plea bargaining provides an opportunity for a speedy trial in a just manner and is therefore not severely objected to by most of the segments of the society

Benefits of Plea Bargaining

Plea bargaining presents numerous benefits to defendant as well as to the prosecutor . For defendants , especially who are held in custody and does not qualify for release on their own recognizance or who do not have the right to bail , plea bargaining offers them a great incentive Through this provision of law , depending on the offense , the defendant may get out altogether , on probation , with or without some community service obligations . Moreover this also ensures speedy conclusion of their cases which otherwise would have taken much longer . Defendants get another benefit through plea bargaining like prosecutors may reduce charges that are perceived as socially offensive to less offensive charges in exchange for a guilty plea . For example , a prosecutor may reduce a molestation or rape case to an assault

One big incentive that the plea bargaining proffers to the defendants is to change their number of offences on record . This can be important if the defendant is ever convicted in the future . For people who are never rearrested , getting a charge reduced from a felony to a misdemeanor , or from a felony that constitutes a strike under a three-strike law to one that does not , can prove to be a critical benefit . Moreover , conviction on felony may result in cancellation of certain professional licenses , if a defendant holds one . But through plea bargaining , the defendant can get the charge reduced and save his /her professional license . Moreover , reduction in a charge may also help the defendant to get employment , which otherwise could not have been possible if convicted of a bigger charge

Another important benefit a defendant can extricate through plea bargain is that it saves their time and money . Affording a good lawyer and spending lot of time to wait for the trial are such hassles , which some people charged with minor first offenses would like to avoid . Then the plea bargain also provides a window of opportunity for people to save their reputation . Businessmen and celebrities may like to avoid negative publicity which can tarnish their image in the society . Some people may also like to keep their names out of the public eyes for their personal reasons , and plea bargain can help them do so

Plea bargaining offers many benefits to the prosecutors and state as well . It helps in avoiding costly trials . Expenses incurred on a single trial may be huge which may include the expense on the investigation the jury , officers assigned to the court not to mention the suffering and fear endured by the victim while waiting for the decision . The cost depends on the nature and complexity of the case , and to some extent on the area in which it is being brought . A straightforward , one day , unfair dismissal hearing would probably cost between 3 ,000 and 5 ,000 dollars (TLT , 2006 . It also avoid potential for appeal . This appeal would result in an additional tab to taxpayers and possible delays because of scheduling . The case involving Darrell Cannon is a good example of how long a case can be embroiled in the court system (Conroy , 2001 . With budget cuts facing most of our courts , an attractive benefit to plea-bargaining is court costs are significantly reduced

Another benefit , the prosecutors get through plea bargain is that they can save victim from testifying at trial . This prevents the turmoil of having to relive the crime and having to describe details that are necessary to have the jury understand the gravity of the crime . Then the plea bargain also avoids uncertainties at trial . At times witnesses may not be found , case in point may not be easy to prove or may not be brought across to the jury as intended . Still in some cases , prosecutors may be convinced that they have the right defendant and a completely accurate charge as to what crime (s ) he or she committed , and yet secure a conviction may be questionable . This of course is beneficial for both sides to arrange a resolution of the matter without either side taking the chance that the case may go against them if it was to go to trial

Prosecutors and law enforcement personnel have a common agenda . Both want to alleviate their caseloads and both want a quick conviction Plea-bargaining is a tool used by both law enforcement and prosecutor in negotiating with the accused as an incentive to confess . A quick confession saves time for everyone , and the accused is assured of the outcome . Its one another advantage is that it increases conviction rate Statistics also play their role in plea-bargaining . A quick guilty plea or no contest plea increases the conviction rate . Charges may be dropped only if the defendant has information to exchange with law enforcement and prosecutors that may enable them to pursue other leads in other serious crimes . In nut shell , it helps prosecutors in getting a conviction and another credit to their office without much toil and with a certainty in their minds

Disadvantages of Plea Bargaining

Besides offering great incentive to the defendants and a lot of benefits to the prosecutor , the plea bargaining has some disadvantages too . A negative side to plea-bargaining includes overcharging the defendant . To gain a conviction and induce the defendant to accept a plea bargain , law enforcement with prosecutors may charge them with every possible infraction . In to avoid so many charges , the defendant is entrapped into the process of bargaining . This may not be true reflection of the prosecution side but it still provides them with such an opportunity to exploit this provision to their vested interests It can also force an innocent person to confess to a crime which he /she has never committed , if so manipulated by the law enforcement people or the prosecutors . Occasionally cases resolved by plea raise an odd , and apparently easy , question of substantive criminal law : Can a defendant plead guilty to a crime that does not exist ? The answer , strangely enough , is yes (Bond , 1983

More so , plea bargain is one option which law enforcement and prosecutors keep in their mind all the time . It may affect their efficiency levels since they may be thinking of getting into the deal and hence may not put in their best on investigation and preparation for the case sometimes even overlooking key evidence or key points in the case . Some people argue that it is the wrongful exploitation of the law It amounts to disproportionate application of the same law . Two different individuals committing the same crime under similar circumstances and motives , may get different punishments if one opts for the deal with the prosecution and the other does not

Similarly , plea bargaining has a negative side with regard to defendant as well . The plea bargain present a chance for confirmed convicts to get their punishment reduced or even get out of jails . Defendants who are able to hire an attorney may have an advantage in getting the charges and the punishment reduced or eliminated altogether (Larson , 2000 . It has a negative impact on the society as a whole . Another negative aspect associated with plea-bargaining is the argument that plea-bargaining forfeits an individual 's Constitutional rights . The overwhelming majority of individuals who are accused of crime forego their constitutional rights and plead guilty (Lynch , 2003

Conclusion

Plea bargaining was not favored in colonial America . In fact , courts actively discouraged defendants from pleading guilty . Courts started gradually accepted guilty pleas in the nineteenth century . As populations increased and court procedural safeguards increased , courts became overcrowded , and trials became more lengthy . This made trial in every case an impossibility . By the twentieth century , the vast majority of criminal cases were resolved with guilty pleas . Plea bargaining is now conducted in almost every criminal case , and roughly nine out of ten plea discussions yield plea agreements

The plea-bargaining has silently crept into our criminal justice system and has found a home staying utilized and with the crime , it would be hard to imagine criminal procedure without it . Individuals have to consider whether a plea bargain is acceptable or not in their situation The defendants can see this as the opportunity to redeem themselves , or as a quick way out of a potentially serious jail term . Law enforcement prosecutors , and defendants see this as a potentially tool that benefits everyone . A case is resolved quickly the defendant is not released and the case is not dismissed and court costs are dramatically reduced . It is a win-win situation for all . But does it affect the society as a whole ? It is the question to be answered . By allowing confirmed convicts to roam freely on the streets thereby threatening the lives and properties of the peaceful citizens , is plea bargaining doing any good to the society ? But if this provision is removed from the criminal justice system , the cases might take years to settle . By delaying the justice , will we be doing any justice at all ? In the present circumstances , without any worthwhile alternative , plea bargaining does not seem to be a bad proposition . After all , it has huge benefits for the state as well

References

Bond , James , E (1983 . Plea Bargaining and Guilty Pleas . 2nd ed . New York : West Pub Co

Conroy , John (March 2 , 2001 ) What Price is Freedom ? Chicago Reader Retrieved July 31 , 2006 , from HYPERLINK "http /www .chicagoreader .com /torture /010302_1 .html http /www .chicagoreader .com /torture /010302_1 .html

Larson , Aaron (March 2000 ) How Does Plea Bargaining ' Work ? Expert Law . Retrieved July 31 , 2006 , from HYPERLINK "http /www .expertlaw .com /library /criminal /plea_bargains .html http /www .expertlaw .com /library /criminal /plea_bargains .html

Lynch , Timothy (October 1 , 2003 ) The Case Against Plea Bargaining Regulation Fall 2003 . Cato Institute . Retrieved July 31 , 2006 , from HYPERLINK "http /www .heartland .org /pdf /13507 .pdf http /www .heartland .org /pdf /13507 .pdf

Plea Bargaining (2006 . Thomson Gale - Legal Encyclopedia Retrieved July 31 , 2006 , from HYPERLINK "http /www .answers .com /plea 20bargaining http /www .answers .com /plea 20bargaining

Procedures for Plea Bargaining (2004 . Nolo Law for All . Retrieved July 31 , 2006 , from HYPERLINK "http /www .nolo .com http /www .nolo .com

Rabe , G Champion , D (2002 . Pretrial Procedures : Plea Bargaining Criminal Courts

Structure , Process and Issues . New Jersey : Prentice Hall , Inc

TLT Solicitors (2006 . Much more than legal advice : How long is it likely to be before a case comes to a tribunal , and how much will it cost to defend ? Retrieved August 1 , 2006 , from HYPERLINK "http /www .tltsolicitors .com " http /www .tltsolicitors .com

Ventura , John (2000 . Crime and Punishment : Law for Dummies . 2nd ed New York : John Wiley Sons Inc

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