– Thoughts On Plea Bargaining Essay, Research Paper SOCL 4461 May 07, 2001 The current tone of the criminal justice system, particularly the prosecution phase, emphasizes, “clearing the docket”. While this is true of both civil and criminal courts, it is very much encouraged in criminal matters where the prosecution likely has the upper hand on most, if not all, defendants.

– Thoughts On Plea Bargaining Essay, Research Paper


SOCL 4461

May 07, 2001

The current tone of the criminal justice system, particularly the prosecution phase, emphasizes, “clearing the docket”. While this is true of both civil and criminal courts, it is very much encouraged in criminal matters where the prosecution likely has the upper hand on most, if not all, defendants. As a result, the practice of Plea Bargaining is over used and likely results in many injustices.

The fact of the matter is that the state, who is for all practical purposes the prosecution, has unlimited resources and will not hesitate to use these resources to prosecute a crime, particularly a high profile crime such as murder or rape.

The defendant on the other hand is more likely to be a person without means and in many instances is represented by a public defender, which is an attorney, on the states payroll, to defend those who cannot afford an attorney for themselves.

Considering that the prosecution or state is also the employer of the defense attorney implies an inherent problem to begin with. Add to this the fact that public defenders most frequently are assigned to the same courts and work with the same judges and prosecutors on a daily basis, often befriending them in the process and you have the makeup for many misdeeds.

It is not unheard of for prosecutors and defense attorneys, both paid and public defenders, to trade off cases, which are important to each other. In general, the way this works is the prosecutor who has a case that is for whatever reason important to him and offers to cut the defense attorney a little slack on his next important case if the defense attorney encourages his client to plead guilty on the current case.

While many would suggest that this does not occur, I have personally witnessed such events and was embarrassed for our system that this is allowed to occur. Further, I was amazed that the judge was fully aware of what was occurring and supported the plea agreement.

The whole process of plea agreements is, in my opinion, tainted. The mere thought that we would encourage someone to plead guilty rather than “risk a trial in which he might be found guilty and piss the judge off” is immoral.

Is not the purpose of our criminal justice system in fact to ensure that everyone has a fair trial in front of his peers? Nowhere was it believed in the creation of our system that a judge should penalize someone for exercising his right to a public trial. However, that is exactly what occurs each and every day in the courtrooms across our country and this practice is even encouraged in many of the sentencing guidelines used in both federal and state courts today.

Judges are so focused on clearing the docket that justice has become the second or third concern and the way to clear the docket is to accept pleas all day long and never have a trial.

By threatening an accused person with a harsher sentence if he elects to go to trial, we have totally bypassed the fundamental rights of American citizens, which we were granted by the constitutional amendments. How can we impose a greater penalty because one chooses a trial and give someone who accepts a plea bargain a better deal, for the sake of saving time and money, when in fact the crimes may be identical or even worse the one with the better deal committed a much worse crime.

Additionally, how many persons have accepted plea bargains at the suggestion of a defense attorney simply because the accused or defense did not have the financial means or resources to put on a sufficient defense. Again, these pleas are likely the result of fearing a harsher sentence if a trial was chosen.

Yes, in many cases the prosecution has a strong case. However, how many times have we witnessed in the last twenty years, long-term convictions being overturned because a witness made a mistake, or a police officer was found to have planted evidence or lied at the trial. These and other injustices do occur and if a defense attorney advises a client to accept a plea agreement to avoid trial and a potentially harsher sentence based on his perception of the prosecutions case, how many innocent people have we jailed?

Although I don’t have numbers to support this theory, I would suspect that over one fourth of those who have been incarcerated were not guilty of the crime to which he entered a plea of guilty, although as the system looks at it, the person was likely guilty of something else and this was all that caught up with them. Additionally, I would speculate that over two thirds of those serving or have served sentences, were the result of guilty pleas at the advice of defense counsel.

With that said, how can we in good conscious support a plea bargaining system that we know to be flawed? Is it really that important for us to usher defendants through the criminal justice system and keep the system flowing? Does this practice foster further corruption within the system and does it perhaps worsen the overcrowding conditions at our jails and prisons?

In short, I assert that the plea agreement system, as it is used now, does do much harm to our society. It basically takes away the constitutional guarantee of a fair trial for most of our citizens. Yes, these persons likely are given a choice of going to trial, but considering that the sentence is harsher if you go to trial, is someone without a good defense attorney and sufficient resources in his corner really given a fair choice between trial and plea bargaining? The answer is no.

Yes, most persons who enter the system are repeat offenders and have likely committed another crime for which he / she may have not been caught and prosecuted. Does this, in itself, justify depriving that person of a fair trail? The answer yet again is no.

Again and again, when one really stops to think about the system, we have to question why we have allowed this to continue and what other alternatives might be fair. Though I don’t have any hard answers, I do think that if we turn the focus back to justice and separate the defense and prosecution a bit, we would make a significant start.

Additionally, we could, impose the same sentences for those who plea out and those who go to trial, however, this would certainly result in many more trials and longer prosecution times, which might also violate the right of an accused to a speedy trial. However, I could also argue that if we issued standard fines and citations, similar to traffic fines and citations, for many of the minor infractions. This practice would perhaps reduce the courts docket sufficiently to allow for trials of the more serious crimes or for those who really believe themselves to be innocent.

Any valid argument for change has an equally weighted counter argument suggesting why the system we have is the best it can be, however, I must again assert my displeasure with the plea bargaining process and encourage our society to come up with a better solution.

The solution must be more forgiving of those who commit minor violations, which in many cases should not be considered crime at all, and we must return the focus on being fair and just, regardless of the cost to society. After all, what value can we put on a person being imprisoned for years who did not commit the crime?