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Plea Bargaining II – A Comprehensive Look At Plea Bargaining

Introduction – For 30 years I have been involved in plea bargaining from both side of criminal cases. As a prosecutor, I witnessed the “forcing” of plea bargains in evidentially weak cases by using tools such as habitual criminal counts, or mandatory sentencing counts for crimes of violence. These “tools” compel long prison sentences and are abused by prosecutors because of the sheer number and weight of criminal cases – especially serious felonies that clog court calenders. This web page is intended to take a very close and comprehensive look at the plea bargaining system.

Plea Bargaining Pros and Cons

As Timothy Lynch noted in his 2002 article “An Eerie Efficiency,”plea bargaining allows the prosecution to not disclose during plea negotiations that its only witness was too drunk at the time of the crime to provide any reliable evidence. Such tactics are unfair. If a plea bargain is a contract, it should be subject to the same rules that apply to other contracts, including the requirement that parties disclose relevant information. If a car dealer must tell you that the car he sells you is defective, prosecutors ought to be required to disclose when their cases are defective.

But the sad fact that such inappropriate bargaining tactics exist does not obviate the freedom of contract itself.

One argument against plea bargaining is that the Sixth Amendment guarantees a right to a jury trial, not to a faster, more potentially error-prone procedure like plea bargaining. As Lynch has written, “The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights, but chose not to adopt them.” But that does not prove plea bargaining is unconstitutional. After all, at the time the Sixth Amendment was written, there were no Federal Rules of Evidence, no Miranda rights, no court-appointed attorneys, and no bench trials. The Framers’ notion of a “fair trial” differs greatly from ours.

Pro Se Defendants – Representing Yourself – Plea Bargaining Abuses

Problems with Plea Bargaining

Plea bargaining, like all government activities, is liable to abuse. Defendants, often too poor to afford their own attorney, unfamiliar with court proceedings, and threatened by the full force of the prosecutor’s office, are likely to be very intimidated. They find themselves confronted by experienced and confident officers of the state, in suits and robes,speaking the jargon of the law and possessing wide discretion to engage in hardball tactics before trial.

Prosecutors know how to exploit limits mandatory sentencing rules, and loopholes that allow evidence collected under questionable circumstances to be admitted. All of this would scare even the most hardened criminal, let alone an innocent defendant. And it could intimidate a defendant into accepting a plea bargain that may not be truly just.

Yet the mere fact that a process can be abused does not necessarily make that process unconstitutional or immoral. Plea bargaining is rife with unfair prosecutorial tactics, and it needs reform. But the process itself is not unconstitutional, nor does it necessarily violate a defendant’s rights.

A Plea Bargain Is A Contract With The State

A plea bargain is a contract with the state. The defendant agrees to plead guilty to a lesser crime and receive a lesser sentence, rather than go to trial on a more severe charge where he faces the possibility of a harsher sentence. Plea bargaining is enormously popular with prosecutors; according to researcher Douglas Guidorizzi, something like 90 percent of criminal cases end in a plea bargain.

In recent decades, courts have upheld extreme and unfair prosecutorial tactics in negotiating plea bargains. In United States v. Ruiz, the U.S. Supreme Court held that the Constitution does not require prosecutors to inform defendants of the impacts of their plea agreements

Today, it seems to be universally conceded that the right to a jury trial is alienable, and nothing in the Constitution says otherwise. It follows that a defendant can “sell” his right to trial if he so chooses. And at least some defendants — often guilty ones — benefit from doing so.

Plea Bargains Can Punish Defendants For Going To Trial – Habitual Criminal Laws – Mandatory Sentencing Laws

Another argument against plea bargaining is that it punishes defendants for invoking their right to a trial. Read the next case…

Plea Bargain Case The Case of Bordenkircher v. Hayes

Consider the landmark case Bordenkircher v. Hayes (1978). The defendant, Paul Lewis Hayes, was indicted for a relatively minor fraud charge, punishable by a two to 10-year sentence. The prosecutor offered Hayes a bargain: If he pled guilty, the prosecutor would seek a five-year sentence. If not, the prosecutor would indict him under the state’s Habitual Criminal Act.

Because he was a repeat offender, conviction under the Act meant a lifetime sentence. Hayes refused the deal, and the prosecutor got the second indictment. Hayes was tried and convicted under the Act, and given a life sentence. On appeal to the U.S. Supreme Court, he argued that the sentence was an unconstitutional punishment for insisting on his right to a jury trial.

The Court ruled against him. In a confusing opinion, it held that so long as the procedure included no actual coercion, the plea bargain did not amount to punishment. But the Court frankly appealed to necessity: “The imposition of these difficult choices,” the Court wrote, is an “inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” The Court thus upheld the practice of plea bargaining solely on pragmatic grounds:

“A rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged.”

Regardless of whether such habitual offender laws are fair or wise, Hayes violated that law,and had, so to speak, incurred the liability of a lifetime prison term. He thus had no right, strictly speaking, to any lesser sentence, let alone to escape indictment completely. Instead, the prosecution had the right to indict him for all the crimes he committed, and Hayes had the right to a jury trial on all those charges.

Once each side possessed those rights and liabilities, they had the right to exchange them; Hayes could trade his jury right for prosecutorial leniency. The prosecution’s bargaining tactics may have been severe, and perhaps statutory reform of those tactics is called for. But the legitimacy of the procedure itself is not refuted by abuses. In short, because Hayes had no right to leniency, his failure to get leniency is not a deprivation, and he could not claim his rights were violated when he failed to receive it.

Does Plea Bargaining Lead To Conviction Of The Innocent? – Plea Bargaining Is Justice?

Some believe that plea bargaining creates an incentive system designed to discourage the exercise of constitutionally protected rights. If the defendant faces a far greater potential sentence at trial than through a plea bargain, this increases the incentive to bargain, which increases the potential that innocent parties will be sent to prison for crimes they did not commit.

Government policies that chill the exercise of constitutional rights are usually regarded with great suspicion. But they are not per se unconstitutional or unjust.

Disparate Punishments – One Takes A Plea Bargain The Other Does Not

The claim that plea bargaining is unconstitutional comes down to the complaint that “disparate punishments for the same offense [are not] sensible.” But similarly situated defendants who make different choices in legal strategy often end up with different sentences.

One defendant might choose to waive his right to testify, while another might exercise that right. The result might be disparate sentences, or even sentences that are insensible to outside observers. But that choice is entirely constitutional. The courtroom may not seem like a place for haggling, but that is exactly what it is, in both civil and criminal contexts. A civil defendant can settle his case for a certain sum; a criminal defendant for a certain amount of time. If the calculations made by prosecutors, or plaintiffs, and defendants are influenced by fear or intimidation rather than calm deliberation, then statutory reform is certainly warranted. But nothing in the Constitution compels it.

Why Plea Bargaining Then?

Plea Bargaining is said to be the most critical process in the criminal justice system.

Plea-bargaining is when the defendant agrees to settle a case with certain guidelines and conditions. The prosecution will ask the defendant for a guilty plea in exchange for a reduced or even suspended sentence. The prosecution may agree to reduce the amount of charges as well. Although estimates vary it is said that 95% of criminal cases incorporate come from of plea-bargaining. Plea-bargaining is just one part of the very lengthy criminal justice process.

Why Plea Bargaining Is So Attractive To The System

Plea-bargaining offers many benefits to both the defendant and the criminal justice system as a whole. Throughout the criminal justice system many people are effected by the use of plea bargains in a positive way. In terms of the defendant there are many benefits, which entice them to enter into a plea bargain. For one they defendant who may be facing multiple charges and the potential for years in jail has the potential to get multiple charges dropped as well as getting a significantly reduced sentence.

With attorney fees ranging from several hundred to several thousand the costs of a trial can be staggering. Disposing of a case prior to trial will have a large impact, as the costs will be notably less. Plea-bargaining also came save the defendant money as the matter will be resolved more quickly and there will be little impact on the defendant’s job and wages will not be lost.

The court system heavily relies on the use of pleas to keep the system moving. In cases involving a plea the judge is able to dispose of a case quickly and move on to the next. In terms of jails and prisons plea-bargaining can also reduce the amount of inmate entering the facilities as jail time may have been suspended as a condition of a plea bargain.

Plea Bargaining Has Been Around For A Very Long Time

The United States have been implementing pleas bargaining in the country for several hundreds years. Over time issues have resolved in term of defendants rights and specifically that the defendant has the right to have a trial by a jury. Sceptics of plea bargaining also argue that the criminal justice system had became too soft on criminals by allowing for lighter sentencing in exchange for a guilty plea.

What You Give Up

Several other disadvantages are associated with plea-bargaining as well. One such disadvantage it that even though a judge and prosecutor may have an agreement and a plea bargain worked out, the courts still have to have the final determination and agree with the terms of the plea bargain. If for whatever reason the court rejects the plea then the case will proceed to a full trial. A big disadvantage for the defendant is that once they sign a plea agreement and agree to plead guilty they will have no opportunity for an appeal at a later date.

The belief in my world is that without the use of plea bargains the criminal justice systems would be crippled.

No Exercise Of Rights – 95% Plead Guilty

Almost every year, more than 95% of those charged plead guilty and waive away their rights , with most defendants doing so through the process of plea bargaining. As some commentators have noted, “We now have not only an administrative criminal justice system, but one so dominant that trials take place in the shadow of guilt.

The Supreme Court, however, has consistently upheld the constitutionality of plea bargaining in a number of cases and has never viewed plea bargaining as presenting an unconstitutional conditions problem.

So What Exactly is PLEA BARGAINING?

Plea bargaining is the process by which the prosecution and the defense negotiate charging and sentencing concessions in exchange for the defendant’s guilty plea and waiver of rights. Guilty pleas and plea bar-gaining are governed by Rule 11 of the Colorado and the analogous Federal Rule of Criminal Procedure, which states that, in order to be constitutionally valid, a guilty plea must be voluntary and intelligent, have a factual basis and be given by the defendant if he is represented by a lawyer – with the effective assistance of counsel.

Upon entering a guilty plea, the defendant waives the privilege against self-incrimination, the right to a jury trial, the right to confront one’s accusers and the right to compul-sory attendance of favorable witnesses.

Why Plea Bargaining Is Dangerous To “Justice”.

The most important criticism of plea bargaining is that plea bargaining can coerce innocent defendants into pleading guilty. The prosecutor’s unlimited discretion to pick and choose which charges to bring against defendants and ability to create significant sentencing differentials between similar defendants can lead to the practice of overcharging and the use of threats to seek the harshest sentence to keep defendants from going to trial.

Innocent, risk-averse defendants are often not be willing to risk going to trial with the possibility of receiving an exceedingly severe sentence, and instead, choose to plead guilty to ensure a more lenient sentence. Therefore, under these circumstances, plea bargaining “undermines the integrity of the criminal justice system and often allows the government to evade the “rigorous standards of due process and proof imposed during trials.

DA’s Become “Judges and Juries”

Instead of establishing a defendant’s guilt and sentence though an impartial process with a complete investigation and an opportunity for the defense to present its case, prosecutors take on the role of judge and jury, making all determinations based on the probability of whether they will win or lose at trial.

The end result is a decision that has little to do with the primary objectives of the criminal justice system.


Other Articles of Interest:

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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