Pros And Cons Of Plea Bargaining
Bargaining in the Guise of Justice? The Pro’s and Con’s of Plea bargaining In the United States.
The creation and application of plea bargaining in our legal system has been in existence since the early seventeenth century. However, for as long as plea bargaining has been utilized it is unclear how this process fits into our legal system. The goals of our legal system are retribution, deterrence, incapacitation or rehabilitation, however plea bargaining fails to support any of these goals (Stitt & Chaires, p.73). Currently plea bargaining is utilized in approximately 95% of all criminal cases in the United States (Walker, 2006, p. 169) and with the enforcement of due process laws plea bargaining has been institutionalized in our …show more content…
society. In the United States it is clear that it is easier to continue present practices in regards to plea bargaining than to implement changes to the current system. The roots of plea bargaining can be traced back to the seventeenth century in England, however the process was not as straight forward as it is now. In this time a criminal could plead guilty and then he would be asked to offer up his accomplices, this in turn may have granted the defendant a pardon from death. However, being a snitch in society was not a preferable option and plea bargaining was not utilized very frequently. In the nineteenth century plea bargaining was still a relatively new option, and it was rarely utilized in the legal system. This was mostly likely due to the fact that there were over 200 offenses on the books that carried the death penalty. It is clear that there was no incentive for the defendant to consider plea bargaining as a viable option, because if the King or local magistrate did not accept the information then the defendant had already plead guilty and would most likely be killed. During 1860’s there was an increase in the number of civil cases that the courts were required to process. With railroad and factories being sued for human rights infractions, the legal system became severely burdened, making the processing of criminal cases almost impossible. At this time a more organized process of plea bargaining was introduced in the legal system to assist judges to move cases more rapidly through the system. However, plea bargaining was still not utilized by all jurisdictions and many judges felt that plea bargaining excluded then from effectively overseeing cases. Judges were troubled by the fact that they would be deciding the cases, but would not be the individual to make the decisions regarding offense charge or sentence. Although judges were starting to consider the use of plea bargaining more frequently, plea bargaining for all intents and purposed remained a judicial secret until about the 1960’s; prior to this time plea bargaining remained an option, but usually was utilized during sentencing and not utilized in the mainstream judicial process. At this time plea bargaining was used, but predominantly not out in the open. The public was usually not aware of the process or that it even existed. However, the application and utilization of plea bargaining was about to change, because of the rapid changes our legal system and society experienced; our reliance or extension of the plea bargaining option increased. During the 1960’s the due process revolution would change the way that plea bargaining was utilized and in many aspects helped to indoctrinate plea bargaining into society (Stitt & Chaires, 71). Prior to the due process revolution it was not mandatory for a defendant to be supplied with counsel in all felonies. Also, prior to the 1960’s defendants were not always informed of their rights, because many defendants did not know their rights or have counsel to explain their rights, utilizing the plea bargaining option was not considered a good option. In many ways I still think that our society suffers from defendants not really knowing their rights or having complex legal matters explained in common everyday terms, which makes me wonder how credible the deals are that the legal system proposes. A plea bargain is a contractual agreement between the prosecution and the accused concerning the disposition of criminal charges (M. Vogel, 2008, p.201), but in our legal system one cannot enter into a contract if they are not able to understand the information contained in the contract. In essence, an individual must be educated and understand all aspects of the contract in order to enter into the contract.
The extension of due process into our legal system insured that all defendants were covered and represented, thus making plea bargaining a more viable option. Although, in my mind even though due process is present in our legal system, in many cases it is clear that defendants are not really educated on their legal options. I think that in many instances the legal language and environment that is present during legal processes is very complex and for the typical layman very alienating. Plea bargaining has become an institution in our legal system, but it is important to remember that vote-buying, bribery of bureaucrats and general corruption are also ancient institutions. A review of the pro’s and con’s of plea bargaining helps to identify whether plea bargaining should continue in our society …show more content…
unchanged. In a criminal trial a defendant has three plea options guilty, not guilty or nolo contendere. In order to utilize the plea bargaining option the defendant must plead guilty to the charges that are being brought against him. In essence, the utilization of the plea bargaining option is a negotiation between the defense and prosecution in relation to the defendant, however the defendant is suppose to be included in this negotiation. In many instances the plea bargaining process is proposed as a benefit to the defendant, because the issue in cases that utilize plea bargaining is not whether the defendant is guilty or innocent, but determining the sentence or punishment for the defendant. The plea bargain agreement is a means to an end; it enables the legal system to reach the end stage at a more rapid rate. An advantage to the defendant is that they get to participate in the negotiation of their case, with their attorney to interpret what is expected from both sides of the legal discussion. On the exterior it looks like plea bargaining is a good option, but the acceptance of a plea bargain by an offender waives many of the offender’s constitutional rights. Once a defendant accepts a plea bargain offer they are no longer entitled to a trial by jury or the option to confront their accusers. However, probably one of the most important constitutional rights that a defendant waives during the plea bargaining process is the ability to not incriminate oneself (a.k.a. self incrimination); many defendants are presented with the facts of their own case and feel alienated, thus agreeing to a plea. Plea bargaining is a very tricky process, and it is proposed to the defendant as a good option by reducing the risk of trial by jury. But once a defendant signs a plea bargain agreement, in essence there is no going back, the defendant has incriminated himself and in exchange for the plea agreement will not receive a trial by jury or the ability to confront his accusers. These rights are not the only freedoms the defendant waives, if the judge decides to not accept the plea bargain then the defendant has already plead guilty and he has inadvertently given away his ability to remain free. The plea bargaining process may seem ambiguous and uncertain, but in reality the majority of the time the judge accepts the terms of the prosecution. For the most part the legal work group has established the going rate for certain offenses and the process of plea bargaining is much less ambiguous for the legal work group. For the legal work group, plea bargaining is another option on the buffet of choices, and in many instances the judge does not review all the details of the plea, because the work group is a cohesive unit that has the same goals; conviction. While this cohesion is a benefit to the legal work group; when a defendant accepts a plea agreement the legal work group obtains another conviction and realizes cost savings, but is plea bargaining a false sense of security and choices for the defendant? If the going rate is already established for certain offenses then how honest is the plea negotiation process? For the most part both sides of this discussion feel that they both benefit from the plea bargaining process, because each side of the discussion has to sacrifice something in order to settle on a final agreement. However, in an environment where the prosecution wins no matter what, how is this constitutional? According to the Supreme Court “plea bargaining is constitutionally sound, because each party gives up something in order for the plea bargain to occur and as long as both parties agree to this then it adheres to constitutional intent” (Bowen, 2009, p. 4). This is very interesting to me because the application of plea bargaining agreements is not consistent from county to county never mind throughout the United States. Examples of these inconsistencies are apparent in some cases where the bargain that is presented is that the prosecution will not comment or recommend a certain sentence for an offense. I am not really clear how this is a sacrifice for the prosecution; I don’t really see that they are giving up anything in this negotiation. The fact that the judge and prosecutor already know the going rate for certain offenses makes the negotiation seem less like a negotiation and more like a slight of hand trick. Another example of the inconsistent application of plea bargaining is the sentencing of lesser offenses that are proposed. The disparity between sentencing and offenses is definitely a con to society as a whole because although the going rate for each offense is known by the legal work group, it does not equalize the administration of plea bargaining. The current administration of plea bargain boils down to who has the better negotiator and in most cases the prosecutor wins. The defense attorney is only present for the advisement of the client, but this does not mean that they are practiced in negotiation of a better deal. This is definitely a disadvantage to the defendant because they are not prepared for the complexity of the plea bargain process. The defendant cannot depend on case precedence to aide them in their decision of whether to take a plea or not because it is very unlikely that a defendant will receive the same sentence. Another disadvantage to the defendant is that although the defense attorney is present to advise the defendant, this does not mean that their advisement may not be swayed by the prosecution and judge. Attorney’s that are working together in the capacity of defense and prosecution have an established working relationship. Although both parties are working to better their trial record, they are working with judges that are elected and a district attorney that is also elected. How can a trial be totally unbiased if members of the legal working group are involved in elections? This clearly is a con to the defendant, but could also be seen as a pro for society. If a judge’s election was supported by certain members in community, can the judge or district attorney be truly unbiased if these supporters are requesting compensation in the form of sentencing? Surveys have shown that judges who preside over cases that are involving supporters are more likely to rule in favor of those supporters. Perhaps this is just a coincidence, but the truth is that our prior experience with individuals helps to shape how we think, feel and act; judges are not exempt. Although they would like to think that they are above the human condition of agreeing with their supporters. Just as judges are not exempt from being influenced in their decisions regarding plea bargaining and sentencing, judges are also involved in the corruption of the court. Another con to plea bargaining is the way that it is applied to the daily legal proceedings. It is shocking that in many cases the prosecution and defense attorney “discuss with judicial involvement what the disposition of the case will be” (McCann, et. al, 2008, p.360). “They will then go out and, on the record, the judge would studiously extract from the defendant his promise there had been no deals made, that he was doing this freely” (McCann, et. al, 2008, p.360). “All parties attest that no deal have been made, then there’s always a break after you conferred with the judge, the defense attorney went out, talked with the defendant, and then this went on the record to protect it from being overturned or appealed someday” (McCann, et. al, 2008, p.360). The whole charade that is part of these court performances are con’s to the entire integrity of the legal system. How are criminals and society expected to be honest and adhere to the laws of our society, if our own legal system does not adhere to the system requirements? This is not the only instance in which our legal system does not adhere or apply the laws in a universal manner. A pro to our legal system is that plea bargaining is for the most part offered in all states, but the con of this fact is that no two jurisdictions apply or interpret plea bargaining the same way. In certain jurisdictions a form is used and the same procedure must be adhered to in order to file the plea with the court and get it reviewed. However, in most instances this is not the case and each case is treated differently depending on the information on the arresting record that was written up by the police. In some ways to base a case exclusively on the paperwork submitted by the police could be an advantage to the defendant, but in reality it is a con. Our legal system and the application of plea bargaining is based on the arresting report that a police officer has written up and submitted to the district attorney. Prior practices for plea bargaining was to speak to the arresting officer, possibly witnesses to identify if the witness is credible and have the defendant present to gauge the strength of the case, but now in an attempt to move more cases through the system, prosecutors only look at paperwork, with limited discussion with arresting officers and discuss with defense. It is not uncommon for attorneys and judges to argue that plea bargaining has created poor police work and many attorneys that do not investigate and prepare their cases appropriately. They believe that instead of pursuing justice, the parties rely on making a deal and that the details of what happened and the legal consequences for those actions are less important. Similar to many of the policies in our society in an attempt to create a faster judicial process, we have let many of the critical steps fall to the wayside. Unfortunately for the defendant, this quick level of processing is also applied to the decision of whether to charge or not. A con for the defendant is that in order to propose a plea bargain the prosecutor must have proof beyond a reasonable doubt, but in many cases the proof is weak. However, the prosecution can manipulate the plea bargaining to maximize the benefit of pleading guilty in the weakest cases. A good example of this would be in the case of a defendant with two prior convictions for petty theft. The prosecutor offers to drop a three-strike charge if the defendant pleads guilty. The defendant must now choose between the risk of life in prison if convicted at a trial, a very short term or a suspended sentence following a guilty plea (McCann, 2007, p.362). In this example, the prosecutor has stacked the charges to insure that the defendant feels that the evidence is overwhelmingly stacked against him and that the choices proposed to him are the best options he could or would receive. The prosecution would also advise that his options would be more limited for a trial by jury. Although the defendant may feel grateful for the chance to negotiate a better deal, he is still clearly at a disadvantage. Even though a judge and prosecutor may have an agreement and a plea bargain worked out, the judge still has the final determination and whether to agree with the terms of the plea bargain. If for any reason the court rejects the plea, then the case will proceed to a full trial. A big disadvantage and con for the defendant, because once the defendant signs a plea agreement and agrees to plead guilty they will have no very few options and may not have the opportunity for an appeal at a later date. Based on the above information it may seem that the plea bargaining process has no merit and that the legal system is only out to improve it’s conviction rate, but the reality is that plea bargaining has streamlined the legal system to enable it to process more cases. There are far too many crimes committed in our country each day, which add up as the year passes. Without the use of plea bargaining the already over crowded prisons would be even worse. It may seem that the system has more features of an assembly line characterized by the process rather than those that typify a model of due process, but if we look at the way the legal system was built it was not prepared or expecting the number of cases that are now in the system. Plea bargaining definitely helps the legal system, but there is a downside for society at large when the use of plea bargaining has become institutionalized.
The result is a system in which bargaining replaces evidence as the paramount determinant of guilt or innocence. This equates to a system in which guilt is presumed rather than innocence. This type of system is not beneficial to defendants, because an innocent defendant may be coerced into a confession and accepts the guilty plea out of fear of a more severe penalty if they are convicted by a jury of their peers. Also, in this type of system plea agreements generally appear on the record, however ambiguity clouds the extent to which judges require a factual basis to support
them. These new practices in addition to administrative pressure on the prosecutor and the economic orientation of the defense attorney drive the system in a direction that is contrary to the needs or intent of our society. In many cases defendants and their families feel that they are railroaded and perhaps not treated fairly in this “drive-thru” type legal system. However, we have laws that help protect our rights. For those people who feel that their rights have been violated they can take active measures. This may include appealing or even taking civil measures against those who have violated their rights. Again, this may not change the fact that you already plead guilty and that the entire legal system is not made for the regular person in society. Knowing that the legal system is complicated and has many pitfalls it is important to remember that it is not all negative and our current legal system with plea bargaining has done a lot of good. Some plea bargains obligate the defendant to provide information or other cooperation to law enforcement and prosecution. This has helped law enforcement to solve other unsolved cases, in many cases a defendant will be asked to give details to the courts or law enforcement regarding old cases or accomplices that were involved or presumed involved in these cases. If the courts are successful not only does plea bargain bring closure to the case they are bargaining, but could bring new life to old or cold cases and potentially close these unsolved cases. In many instances, plea bargaining saves the legal system time and money in these investigations because information can be obtained from defendants and dispatching of police, investigators and other costly options to solve the cases is not needed. In many ways plea bargaining seems like it is the cost solution to our legal system, but what would occur if plea bargaining was not utilized. In two states the plea bargaining option was abolished for a time and the result of not having this option was surprising. In Alaska in 1975 they decided that they would ban plea bargaining. The policy attacked plea bargaining in 3 ways: forbidding “sentence bargaining” and “charge bargaining,” and establishing procedures for supervising plea negotiations (Walker, 2006, pgs, 168-170). It would seem that without the option of plea bargaining that the wheels of justice would scream to a halt or at least to a crawl, but the surprising fact is that the systems functioned as normal. The amazing fact was that cases seemed to move “through the system at a more rapid pace, because restrictions on plea bargaining eliminate certain alternatives and uncertainties about which one to choose” (Walker, 2006, pg. 169). “With less to negotiate, the prosecutor and defense attorney reached agreement more quickly” (Walker, 2006, pg. 169). “Or to put it in layman’s terms, the courtroom work group has a smaller menu to choose from” (Walker, 2006, pg. 169). Another shocking revelation was that the results of the cases were very similar to cases that were plead, this lack of discrepancy proves that as a society we could eliminate plea bargaining and things would still function as normal. “There were no radical shifts in discretion occurring as a result of the ban and this was measured by the pattern of rejections and dismissals of cases” (Walker, 2006, pg.169). It would seem that even though as a society we desire quicker avenue to get to the end result in these cases sentencing, but nothing seems to be sacrificed in this race to justice. Similar results were observed in the case of Michigan, “Michigan enacted a law mandating prison terms for individuals convicted with gun related crimes and it was supplemented with a ban on plea bargaining” (Walker, 2006, pg 170). “The end result was that, Michigan law found no significant change in the minimum sentence for homicide and armed robbery cases” (Walker, 2006, pg 170). “In other words prosecutors had not been lenient in plea bargaining with defendants charged with robbery beforehand” (Walker, 2006, pg. 170). “Once again, there was not loophole to be closed” (Walker, 2006, pg. 170). A positive by-product of the introduction of this policy was that “defendants charged with aggravated assault began to receive higher minimum sentences” (Walker, 2006, pg. 170). The reason for this adjustment in the administration of justice is due to the fact that “prosecutors treated aggravated assaults as third-layer cases, accepting pleas to lesser charges” (Walker, 2006, pg. 170). “The new law closed off this avenue and (as in Alaska) produced convictions on higher charges and longer sentences” (Walker, 2006, pg. 170). In these examples we clearly can see the cons of utilizing plea bargaining, although it is identify in these studies that no loophole was present to be closed, this does not account for the fact that plea bargaining does enable prosecutors to negotiate lesser charges in certain cases. This is important to acknowledge because for society as a whole this is definitely a con because this means that potentially serious offenders may receive lesser sentences, meaning they can be released back into society sooner. How are we adhering to the goals of our legal system if we are releasing offenders back into society sooner? As discussed prior the goals of our legal system are retribution, deterrence, incapacitation or rehabilitation (Stitt & Chaires, p.73) however when we utilize plea bargaining we end up releasing offenders sooner which means that we do not incapacitate these criminals for extended periods of time. This equates to criminals being back out on the street in an earlier time frame and we are not sufficiently deterring criminals from re-offending. In addition to not being able to deter or incapacitate criminals due to plea bargaining agreements, it is nearly impossible for criminals to be rehabilitated in detention when offenders are only detained for short incarceration terms. When criminals are incarcerated for longer periods of time, they have more opportunities for educational and job training. Criminals also have time to take advantage of placement programs for addiction and mental health issues; it is clear that by utilizing plea bargaining we are not only releasing potentially dangerous criminals back into society sooner, but we are also not enabling these individuals to be rehabilitated. This may not seem like a priority to society, but if we do not incarcerate or rehabilitate the offenders we have in society, we have no hope of fighting crime. For many in society this may seem ridiculous and in some instances an insult to the victims and victims family that continue to be affected by the trauma that the offender has created. For victims and victims families the trauma that the offender has inflicted will most likely affect them for the rest of their life and a definite con of utilizing plea bargaining is that those impacted by the offense may be offended by the entire plea bargain process. In plea bargain agreements an offender can reduce his offense and sentence, but most victims or their families may not realize that this bargaining helps to solve other cases or may serve a greater purpose for society. Since most victims and their families are not involved in the plea bargain process the entire process seems like an insult and in some instances may re-victimize the victim. The reason for victims to feel re-victimized is because the offender may receive a lighter sentence or may be released into society sooner and the victim may feel that they are vulnerable to the actions of the offender again. It can be argued by society that a con of plea bargaining many criminal cases is that true justice, which is the responsibility of the legal system, is by-passed by the quest for expediency (Watson, 2010, p.80). While plea bargaining seems like a con to victims and their families, it is important to identify the pros that are present with plea bargaining and victims. With the utilization of the plea bargaining process there will never be the need for the victim to be brought to trial and re-live the traumatic crime again. A trial by jury is good for certain cases, but as we saw in the case of OJ Simpson, trials do not always obtain the desired outcome, even though evidence may point to the contrary. If cases were forced to only go to trial by jury then the damage to victims and their families may be more than the pleading to a lesser charge. The problem with trials by jury is that nothing is certain and in many cases studies show that offenders quite frequently receive the same sentence as those cases plea bargained. However, there are many pitfalls to trials by jury, because finding a jury that is truly unbiased is a difficult task in itself. Whether we would like to admit it or not our upbringing, demographic and life experiences shape who we as individuals are and will become these factors will aide the jury members to decide the defendant’s fate. But by utilizing the plea bargaining process it eliminates the uncertainty of a trial by jury, instead of not knowing all the variables and characters present in a trial. A plea bargain lays all the cards on the table and helps all involved make an educated decision that will preserve the fragility and confidentiality of the victim and their family. Since plea bargaining insures a conviction there is no danger of the offender not receiving some type of sentence, however there is one more variable that is utilized in plea bargaining that also makes individuals in society feel that plea bargaining is a con in our society. Plea bargaining is utilized quite frequently in sentence negotiations and in many instances once an individual decides to accept a plea bargain agreement this helps to reduce the sentence that they will receive. It is true that the legal workgroup knows the going rate for offenses, but in many instances to make the deals more attractive they will have suggestions on how to ease the sentence for offenders. An example of these negotiations would be when a defendant is arrested and detained while the plea agreement is negotiation. Once an agreement can be reached in many instances the time that the defendant has served while waiting for the agreement to be completed will be credited to his sentence, this is beneficial to the defendant, but in the case of victims and their families, it could mean that the defendant would serve minimal time. This may seem like an insult to the victim and their family, but the defendant has the same rights as any other citizen in the United States. If the defendant is wise enough to negotiate a better deal for themselves then the defendant has successfully utilized the legal system that was established to facilitate the quick movement of these cases through the legal process. The ability to be an experienced offender is another pro of the plea bargaining process. As obscure as the plea bargaining process seems for the in-experienced offender, to the experienced offender the plea bargaining process is an expected outcome of the legal process. The problem with the plea bargaining process is that an experienced offender with the ability to negotiate effectively can realize better plea bargaining deals. Although their defense attorney is present for advisement, experienced offenders are aware of how the plea process works and utilize these processes to obtain lesser offenses and sentences. A definite con to society is that experienced offenders have the ability to manipulate our “drive-thru” legal system to their advantage, in these cases offenders definitely do no learn from their offenses. Offenders who can manipulate the legal system will continue to utilize plea bargaining as a tool to obtain lesser sentences, which enables them to get back out into society through the revolving doors of justice we call our legal system. As a society we are continually striving to initiate a war on crime, but our legal system gives offenders every option to plea to a lesser crime and get our of jail sooner. With offenders having the option of getting out sooner and the emphasis for offenders not being rehabilitation our war on crime seems all in vein. However, it is clear that plea bargaining is a pro because it facilitates the movement and disposal of cases through our legal system at a more rapid pace, the total effect of plea bargaining on our society as a whole is unclear. If we look at individuals in society and the application of plea bargain our ability as a society to apply the plea bargaining process according to our own discretion creates a system that is uneven in its application and in many cases the legal restraint that should be present in our system are clearly lacking. Where does this leave us? Is plea bargaining constitutionally sound? Is plea bargaining a good option for our society? Are we allowing violent offenders back into society too soon and if we are releasing them too soon, would abolishing the practice aid us in the restructuring of our legal system and eventually society? The answers for all of these questions are not really straight forward and as with any process change is very hard. Initially I thought that plea bargaining was a good idea for our legal system, because with the “war on drugs” and the “war on crime” the influx in cases and criminals in the system is astounding. It is apparent that there is no possible way for every case to be entered into the system, arraigned and then proceed to a full court hearing with a jury of the criminal’s peers. The current backlog of cases in additional the problem of having overcrowded prisons and jails would only get worse. It is clear that although the Alaska and Michigan studies identified that the system would function normally, I have a hard time believing that the system would not eventually grind to a halt. Also, in this day and age where we are experiencing budget cuts and department re-assignments, it is unclear where the additional personnel and money would come from to sustain a legal system without the plea bargaining option. It is clear that the current environment our society is in does not advocate the abolishment of the plea bargaining option. However, could we change the plea bargaining process and include more limitations on the discretion of the legal work group? Changing the current system is an option, but changing the current status quo is not an easy task. No matter what changes are made to the system it would most likely include needing more personnel and that would take more money. The changes that we could make to the system could include more advocates for the defendants, because the legal process is so complex this could enable a more fair process of bargaining. This advocate would be an individual outside the legal work group that could advise the defendant of the evidence present regarding the case and the options that are being offered for the case. The defendant would still have his or her attorney, but this advocate would be an individual with no ties to the legal work group and this would hopefully alleviate the idea that the defendant was coerced into accepting the plea. This option is appealing, but it would still require additional funding a resources. A change could be made to the way that plea bargains are considered, filed and administered. As with the case of Michigan, in all jurisdictions certain cases would not be considered or eligible for plea bargaining, but for the cases that are eligible a certain procedure would need to be established and utilized in every case. Currently plea bargaining is not the same in any jurisdiction, in my opinion there is too much individual discretion in the initiation, application and administration of plea agreements. Under a new system it would be beneficial for a clear and concise procedure to be followed. This new system would be similar to a mathematical equation in which an offense is identified and there are options to plea to the identified lesser charges. These lesser charges would equate to identified sentences, it would be very similar to a menu of options. If a defendant knew they were being arrested on a certain offense then prior case precedence would identify the punishment they could expect. The pros of this system is that it would take away individual preference and discretion during the plea bargaining. Every case would be treated the same and the complaint that some cases are negotiated better or there is a preference or biased based on relationships would be eliminated as a reason to re-try a case or dismiss a case on prejudice. However, the cons to standardizing any system is that it is inevitable that with the changing face of our society and crime there will always be exceptions to the rule. Crime and criminals are almost impossible to standardize, especially since our societal ideals are constantly changing. In addition, the crimes and there consequences are constantly changing because crimes that were once considered appalling to society, may become more mainstream and socially acceptable. An example of this would be religious practice and expression, as more religions are identified in society the strange and non-standard practices of these religions are more socially accepted. I feel that the current legal and financial position that our society is in equates to an impossibility of society being able to change the current plea bargaining system. In essence we have backed ourselves into a corner that will not advocate the changes of the system. As with any system it is extremely difficult to implement change, but with the plea bargaining system change may be next to impossible. If we make changes to plea bargaining to insure that the administration of plea bargaining is level across the board it for all offenders, then the individuals that are sentenced by these new policies have the discretion to compare prior practices and the new practices. This comparison could prompt law suits stating that the new procedure and administration of plea bargaining is unduly strict. Also, changes to the current system could have a detrimental effect on the already overcrowded prison system. By limiting the choices available to offenders we will limit the avenues to reduce sentences and this could equate to more prisons being overcrowded. It is already an administrative nightmare to have overcrowded prison and to further aggravate this situation would only potentially increase the number of offender law suits against the legal system. I don’t see how we can change the current plea bargaining system, but at the same time we cannot allow it to remain an option in our legal system. We as a society are currently utilizing a practice that abuses the rights of offenders and works in the opposite direction in respects to our crime control initiatives. It is clear that we cannot advocate a practice that strips offenders of their rights, but at the same time I am appalled that we actually give offenders the option or right to plea bargain just because they have admitted to a crime. Our society has declared a “war on crime”, but the truth is that we don’t really support this hard line of thinking. Our current society has allowed for offenders to get the privilege of pleading better charges and sentences in exchange for admitting guilt. This type of negotiation is hardly a “get tough on crime” way of thinking; if we were to adhere to the policies and ideas on crime of our society then we would pass the maximum sentence for each offense. Changing the current plea system will not work because similar to gun control once you have opened the flood gates how do you return to a society without the use of that system? The answer to this question is that we must find an acceptable alternative to plea bargaining. We must invest time and resources into researching the current plea bargaining system and identifying what components of this system works. Currently we as a society are not sure what elements of plea bargaining works and which ones facilitate the release of violent offenders prior to the advocated time. Once we can identify the areas of the plea system that works for our society, we must take this information and apply it to a new alternative. However, this new alternative must have research and experiments performed to insure that it is a better option than plea bargaining. Many times in our society we chose the quickest option to address the ever changing needs of our society, but this is not always wise. It is clear that such programs do not always work and many have adversarial affects to our society. Another aspect of our legal system that must be changed is the amount of discretion the prosecutor and the judge have during such proceedings. As a society have given certain individuals in our legal system an inordinate amount of discretion and this is not always a good idea. This is especially true in the case of judges, because they are elected officials. As I identified in this paper judges are not exempt from siding with individuals that supported their campaigns and as long as we give individuals absolute discretion in decision making of cases we are setting ourselves up for failure. I know that changing the current system is almost impossible, but if there is one change that we could as a society should make to the current system, it would be to attempt to eliminate a system that believes in the eradication of individual rights. We should not support a system that believes in order to get a conviction the offender must waive his rights to trial by jury, self-incrimination and the right to confront there accusers. We must find a way to incorporate these rights even in an economically distressed system.
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Stitt, Grant B. & Chaires, R (1993). Plea Bargaining: Ethical Issues and Emerging Perspectives. Justice Professional. Vol. 7, No.2: 69-91.
Watson, D. (2010). The Attorney General’s Guidelines on Plea Bargaining in Serious Fraud: Obtaining Guilty Pleas Fairly?. The Journal of Criminal Law. 74: 77-90
Baldwin, J and McConville, M. (1979). Plea Bargaining and Plea Negotiation in England. Law & Society Review. Vol. 13, 287: 29-3.4
Alschuler, Albert W. (1979). Plea Bargaining and Its History. Law and Society Review. Vol. 13, No. 2, pp. 211-245
Walker, S (2006). Sense and Non-Sense about Crime and Drugs. Abolishing Plea Bargaining.(pp.167-171). Thomson Corporation.
The creation and application of plea bargaining in our legal system has been in existence since the early seventeenth century. However, for as long as plea bargaining has been utilized it is unclear how this process fits into our legal system. The goals of our legal system are retribution, deterrence, incapacitation or rehabilitation, however plea bargaining fails to support any of these goals (Stitt & Chaires, p.73). Currently plea bargaining is utilized in approximately 95% of all criminal cases in the United States (Walker, 2006, p. 169) and with the enforcement of due process laws plea bargaining has been institutionalized in our …show more content…
society. In the United States it is clear that it is easier to continue present practices in regards to plea bargaining than to implement changes to the current system. The roots of plea bargaining can be traced back to the seventeenth century in England, however the process was not as straight forward as it is now. In this time a criminal could plead guilty and then he would be asked to offer up his accomplices, this in turn may have granted the defendant a pardon from death. However, being a snitch in society was not a preferable option and plea bargaining was not utilized very frequently. In the nineteenth century plea bargaining was still a relatively new option, and it was rarely utilized in the legal system. This was mostly likely due to the fact that there were over 200 offenses on the books that carried the death penalty. It is clear that there was no incentive for the defendant to consider plea bargaining as a viable option, because if the King or local magistrate did not accept the information then the defendant had already plead guilty and would most likely be killed. During 1860’s there was an increase in the number of civil cases that the courts were required to process. With railroad and factories being sued for human rights infractions, the legal system became severely burdened, making the processing of criminal cases almost impossible. At this time a more organized process of plea bargaining was introduced in the legal system to assist judges to move cases more rapidly through the system. However, plea bargaining was still not utilized by all jurisdictions and many judges felt that plea bargaining excluded then from effectively overseeing cases. Judges were troubled by the fact that they would be deciding the cases, but would not be the individual to make the decisions regarding offense charge or sentence. Although judges were starting to consider the use of plea bargaining more frequently, plea bargaining for all intents and purposed remained a judicial secret until about the 1960’s; prior to this time plea bargaining remained an option, but usually was utilized during sentencing and not utilized in the mainstream judicial process. At this time plea bargaining was used, but predominantly not out in the open. The public was usually not aware of the process or that it even existed. However, the application and utilization of plea bargaining was about to change, because of the rapid changes our legal system and society experienced; our reliance or extension of the plea bargaining option increased. During the 1960’s the due process revolution would change the way that plea bargaining was utilized and in many aspects helped to indoctrinate plea bargaining into society (Stitt & Chaires, 71). Prior to the due process revolution it was not mandatory for a defendant to be supplied with counsel in all felonies. Also, prior to the 1960’s defendants were not always informed of their rights, because many defendants did not know their rights or have counsel to explain their rights, utilizing the plea bargaining option was not considered a good option. In many ways I still think that our society suffers from defendants not really knowing their rights or having complex legal matters explained in common everyday terms, which makes me wonder how credible the deals are that the legal system proposes. A plea bargain is a contractual agreement between the prosecution and the accused concerning the disposition of criminal charges (M. Vogel, 2008, p.201), but in our legal system one cannot enter into a contract if they are not able to understand the information contained in the contract. In essence, an individual must be educated and understand all aspects of the contract in order to enter into the contract.
The extension of due process into our legal system insured that all defendants were covered and represented, thus making plea bargaining a more viable option. Although, in my mind even though due process is present in our legal system, in many cases it is clear that defendants are not really educated on their legal options. I think that in many instances the legal language and environment that is present during legal processes is very complex and for the typical layman very alienating. Plea bargaining has become an institution in our legal system, but it is important to remember that vote-buying, bribery of bureaucrats and general corruption are also ancient institutions. A review of the pro’s and con’s of plea bargaining helps to identify whether plea bargaining should continue in our society …show more content…
unchanged. In a criminal trial a defendant has three plea options guilty, not guilty or nolo contendere. In order to utilize the plea bargaining option the defendant must plead guilty to the charges that are being brought against him. In essence, the utilization of the plea bargaining option is a negotiation between the defense and prosecution in relation to the defendant, however the defendant is suppose to be included in this negotiation. In many instances the plea bargaining process is proposed as a benefit to the defendant, because the issue in cases that utilize plea bargaining is not whether the defendant is guilty or innocent, but determining the sentence or punishment for the defendant. The plea bargain agreement is a means to an end; it enables the legal system to reach the end stage at a more rapid rate. An advantage to the defendant is that they get to participate in the negotiation of their case, with their attorney to interpret what is expected from both sides of the legal discussion. On the exterior it looks like plea bargaining is a good option, but the acceptance of a plea bargain by an offender waives many of the offender’s constitutional rights. Once a defendant accepts a plea bargain offer they are no longer entitled to a trial by jury or the option to confront their accusers. However, probably one of the most important constitutional rights that a defendant waives during the plea bargaining process is the ability to not incriminate oneself (a.k.a. self incrimination); many defendants are presented with the facts of their own case and feel alienated, thus agreeing to a plea. Plea bargaining is a very tricky process, and it is proposed to the defendant as a good option by reducing the risk of trial by jury. But once a defendant signs a plea bargain agreement, in essence there is no going back, the defendant has incriminated himself and in exchange for the plea agreement will not receive a trial by jury or the ability to confront his accusers. These rights are not the only freedoms the defendant waives, if the judge decides to not accept the plea bargain then the defendant has already plead guilty and he has inadvertently given away his ability to remain free. The plea bargaining process may seem ambiguous and uncertain, but in reality the majority of the time the judge accepts the terms of the prosecution. For the most part the legal work group has established the going rate for certain offenses and the process of plea bargaining is much less ambiguous for the legal work group. For the legal work group, plea bargaining is another option on the buffet of choices, and in many instances the judge does not review all the details of the plea, because the work group is a cohesive unit that has the same goals; conviction. While this cohesion is a benefit to the legal work group; when a defendant accepts a plea agreement the legal work group obtains another conviction and realizes cost savings, but is plea bargaining a false sense of security and choices for the defendant? If the going rate is already established for certain offenses then how honest is the plea negotiation process? For the most part both sides of this discussion feel that they both benefit from the plea bargaining process, because each side of the discussion has to sacrifice something in order to settle on a final agreement. However, in an environment where the prosecution wins no matter what, how is this constitutional? According to the Supreme Court “plea bargaining is constitutionally sound, because each party gives up something in order for the plea bargain to occur and as long as both parties agree to this then it adheres to constitutional intent” (Bowen, 2009, p. 4). This is very interesting to me because the application of plea bargaining agreements is not consistent from county to county never mind throughout the United States. Examples of these inconsistencies are apparent in some cases where the bargain that is presented is that the prosecution will not comment or recommend a certain sentence for an offense. I am not really clear how this is a sacrifice for the prosecution; I don’t really see that they are giving up anything in this negotiation. The fact that the judge and prosecutor already know the going rate for certain offenses makes the negotiation seem less like a negotiation and more like a slight of hand trick. Another example of the inconsistent application of plea bargaining is the sentencing of lesser offenses that are proposed. The disparity between sentencing and offenses is definitely a con to society as a whole because although the going rate for each offense is known by the legal work group, it does not equalize the administration of plea bargaining. The current administration of plea bargain boils down to who has the better negotiator and in most cases the prosecutor wins. The defense attorney is only present for the advisement of the client, but this does not mean that they are practiced in negotiation of a better deal. This is definitely a disadvantage to the defendant because they are not prepared for the complexity of the plea bargain process. The defendant cannot depend on case precedence to aide them in their decision of whether to take a plea or not because it is very unlikely that a defendant will receive the same sentence. Another disadvantage to the defendant is that although the defense attorney is present to advise the defendant, this does not mean that their advisement may not be swayed by the prosecution and judge. Attorney’s that are working together in the capacity of defense and prosecution have an established working relationship. Although both parties are working to better their trial record, they are working with judges that are elected and a district attorney that is also elected. How can a trial be totally unbiased if members of the legal working group are involved in elections? This clearly is a con to the defendant, but could also be seen as a pro for society. If a judge’s election was supported by certain members in community, can the judge or district attorney be truly unbiased if these supporters are requesting compensation in the form of sentencing? Surveys have shown that judges who preside over cases that are involving supporters are more likely to rule in favor of those supporters. Perhaps this is just a coincidence, but the truth is that our prior experience with individuals helps to shape how we think, feel and act; judges are not exempt. Although they would like to think that they are above the human condition of agreeing with their supporters. Just as judges are not exempt from being influenced in their decisions regarding plea bargaining and sentencing, judges are also involved in the corruption of the court. Another con to plea bargaining is the way that it is applied to the daily legal proceedings. It is shocking that in many cases the prosecution and defense attorney “discuss with judicial involvement what the disposition of the case will be” (McCann, et. al, 2008, p.360). “They will then go out and, on the record, the judge would studiously extract from the defendant his promise there had been no deals made, that he was doing this freely” (McCann, et. al, 2008, p.360). “All parties attest that no deal have been made, then there’s always a break after you conferred with the judge, the defense attorney went out, talked with the defendant, and then this went on the record to protect it from being overturned or appealed someday” (McCann, et. al, 2008, p.360). The whole charade that is part of these court performances are con’s to the entire integrity of the legal system. How are criminals and society expected to be honest and adhere to the laws of our society, if our own legal system does not adhere to the system requirements? This is not the only instance in which our legal system does not adhere or apply the laws in a universal manner. A pro to our legal system is that plea bargaining is for the most part offered in all states, but the con of this fact is that no two jurisdictions apply or interpret plea bargaining the same way. In certain jurisdictions a form is used and the same procedure must be adhered to in order to file the plea with the court and get it reviewed. However, in most instances this is not the case and each case is treated differently depending on the information on the arresting record that was written up by the police. In some ways to base a case exclusively on the paperwork submitted by the police could be an advantage to the defendant, but in reality it is a con. Our legal system and the application of plea bargaining is based on the arresting report that a police officer has written up and submitted to the district attorney. Prior practices for plea bargaining was to speak to the arresting officer, possibly witnesses to identify if the witness is credible and have the defendant present to gauge the strength of the case, but now in an attempt to move more cases through the system, prosecutors only look at paperwork, with limited discussion with arresting officers and discuss with defense. It is not uncommon for attorneys and judges to argue that plea bargaining has created poor police work and many attorneys that do not investigate and prepare their cases appropriately. They believe that instead of pursuing justice, the parties rely on making a deal and that the details of what happened and the legal consequences for those actions are less important. Similar to many of the policies in our society in an attempt to create a faster judicial process, we have let many of the critical steps fall to the wayside. Unfortunately for the defendant, this quick level of processing is also applied to the decision of whether to charge or not. A con for the defendant is that in order to propose a plea bargain the prosecutor must have proof beyond a reasonable doubt, but in many cases the proof is weak. However, the prosecution can manipulate the plea bargaining to maximize the benefit of pleading guilty in the weakest cases. A good example of this would be in the case of a defendant with two prior convictions for petty theft. The prosecutor offers to drop a three-strike charge if the defendant pleads guilty. The defendant must now choose between the risk of life in prison if convicted at a trial, a very short term or a suspended sentence following a guilty plea (McCann, 2007, p.362). In this example, the prosecutor has stacked the charges to insure that the defendant feels that the evidence is overwhelmingly stacked against him and that the choices proposed to him are the best options he could or would receive. The prosecution would also advise that his options would be more limited for a trial by jury. Although the defendant may feel grateful for the chance to negotiate a better deal, he is still clearly at a disadvantage. Even though a judge and prosecutor may have an agreement and a plea bargain worked out, the judge still has the final determination and whether to agree with the terms of the plea bargain. If for any reason the court rejects the plea, then the case will proceed to a full trial. A big disadvantage and con for the defendant, because once the defendant signs a plea agreement and agrees to plead guilty they will have no very few options and may not have the opportunity for an appeal at a later date. Based on the above information it may seem that the plea bargaining process has no merit and that the legal system is only out to improve it’s conviction rate, but the reality is that plea bargaining has streamlined the legal system to enable it to process more cases. There are far too many crimes committed in our country each day, which add up as the year passes. Without the use of plea bargaining the already over crowded prisons would be even worse. It may seem that the system has more features of an assembly line characterized by the process rather than those that typify a model of due process, but if we look at the way the legal system was built it was not prepared or expecting the number of cases that are now in the system. Plea bargaining definitely helps the legal system, but there is a downside for society at large when the use of plea bargaining has become institutionalized.
The result is a system in which bargaining replaces evidence as the paramount determinant of guilt or innocence. This equates to a system in which guilt is presumed rather than innocence. This type of system is not beneficial to defendants, because an innocent defendant may be coerced into a confession and accepts the guilty plea out of fear of a more severe penalty if they are convicted by a jury of their peers. Also, in this type of system plea agreements generally appear on the record, however ambiguity clouds the extent to which judges require a factual basis to support
them. These new practices in addition to administrative pressure on the prosecutor and the economic orientation of the defense attorney drive the system in a direction that is contrary to the needs or intent of our society. In many cases defendants and their families feel that they are railroaded and perhaps not treated fairly in this “drive-thru” type legal system. However, we have laws that help protect our rights. For those people who feel that their rights have been violated they can take active measures. This may include appealing or even taking civil measures against those who have violated their rights. Again, this may not change the fact that you already plead guilty and that the entire legal system is not made for the regular person in society. Knowing that the legal system is complicated and has many pitfalls it is important to remember that it is not all negative and our current legal system with plea bargaining has done a lot of good. Some plea bargains obligate the defendant to provide information or other cooperation to law enforcement and prosecution. This has helped law enforcement to solve other unsolved cases, in many cases a defendant will be asked to give details to the courts or law enforcement regarding old cases or accomplices that were involved or presumed involved in these cases. If the courts are successful not only does plea bargain bring closure to the case they are bargaining, but could bring new life to old or cold cases and potentially close these unsolved cases. In many instances, plea bargaining saves the legal system time and money in these investigations because information can be obtained from defendants and dispatching of police, investigators and other costly options to solve the cases is not needed. In many ways plea bargaining seems like it is the cost solution to our legal system, but what would occur if plea bargaining was not utilized. In two states the plea bargaining option was abolished for a time and the result of not having this option was surprising. In Alaska in 1975 they decided that they would ban plea bargaining. The policy attacked plea bargaining in 3 ways: forbidding “sentence bargaining” and “charge bargaining,” and establishing procedures for supervising plea negotiations (Walker, 2006, pgs, 168-170). It would seem that without the option of plea bargaining that the wheels of justice would scream to a halt or at least to a crawl, but the surprising fact is that the systems functioned as normal. The amazing fact was that cases seemed to move “through the system at a more rapid pace, because restrictions on plea bargaining eliminate certain alternatives and uncertainties about which one to choose” (Walker, 2006, pg. 169). “With less to negotiate, the prosecutor and defense attorney reached agreement more quickly” (Walker, 2006, pg. 169). “Or to put it in layman’s terms, the courtroom work group has a smaller menu to choose from” (Walker, 2006, pg. 169). Another shocking revelation was that the results of the cases were very similar to cases that were plead, this lack of discrepancy proves that as a society we could eliminate plea bargaining and things would still function as normal. “There were no radical shifts in discretion occurring as a result of the ban and this was measured by the pattern of rejections and dismissals of cases” (Walker, 2006, pg.169). It would seem that even though as a society we desire quicker avenue to get to the end result in these cases sentencing, but nothing seems to be sacrificed in this race to justice. Similar results were observed in the case of Michigan, “Michigan enacted a law mandating prison terms for individuals convicted with gun related crimes and it was supplemented with a ban on plea bargaining” (Walker, 2006, pg 170). “The end result was that, Michigan law found no significant change in the minimum sentence for homicide and armed robbery cases” (Walker, 2006, pg 170). “In other words prosecutors had not been lenient in plea bargaining with defendants charged with robbery beforehand” (Walker, 2006, pg. 170). “Once again, there was not loophole to be closed” (Walker, 2006, pg. 170). A positive by-product of the introduction of this policy was that “defendants charged with aggravated assault began to receive higher minimum sentences” (Walker, 2006, pg. 170). The reason for this adjustment in the administration of justice is due to the fact that “prosecutors treated aggravated assaults as third-layer cases, accepting pleas to lesser charges” (Walker, 2006, pg. 170). “The new law closed off this avenue and (as in Alaska) produced convictions on higher charges and longer sentences” (Walker, 2006, pg. 170). In these examples we clearly can see the cons of utilizing plea bargaining, although it is identify in these studies that no loophole was present to be closed, this does not account for the fact that plea bargaining does enable prosecutors to negotiate lesser charges in certain cases. This is important to acknowledge because for society as a whole this is definitely a con because this means that potentially serious offenders may receive lesser sentences, meaning they can be released back into society sooner. How are we adhering to the goals of our legal system if we are releasing offenders back into society sooner? As discussed prior the goals of our legal system are retribution, deterrence, incapacitation or rehabilitation (Stitt & Chaires, p.73) however when we utilize plea bargaining we end up releasing offenders sooner which means that we do not incapacitate these criminals for extended periods of time. This equates to criminals being back out on the street in an earlier time frame and we are not sufficiently deterring criminals from re-offending. In addition to not being able to deter or incapacitate criminals due to plea bargaining agreements, it is nearly impossible for criminals to be rehabilitated in detention when offenders are only detained for short incarceration terms. When criminals are incarcerated for longer periods of time, they have more opportunities for educational and job training. Criminals also have time to take advantage of placement programs for addiction and mental health issues; it is clear that by utilizing plea bargaining we are not only releasing potentially dangerous criminals back into society sooner, but we are also not enabling these individuals to be rehabilitated. This may not seem like a priority to society, but if we do not incarcerate or rehabilitate the offenders we have in society, we have no hope of fighting crime. For many in society this may seem ridiculous and in some instances an insult to the victims and victims family that continue to be affected by the trauma that the offender has created. For victims and victims families the trauma that the offender has inflicted will most likely affect them for the rest of their life and a definite con of utilizing plea bargaining is that those impacted by the offense may be offended by the entire plea bargain process. In plea bargain agreements an offender can reduce his offense and sentence, but most victims or their families may not realize that this bargaining helps to solve other cases or may serve a greater purpose for society. Since most victims and their families are not involved in the plea bargain process the entire process seems like an insult and in some instances may re-victimize the victim. The reason for victims to feel re-victimized is because the offender may receive a lighter sentence or may be released into society sooner and the victim may feel that they are vulnerable to the actions of the offender again. It can be argued by society that a con of plea bargaining many criminal cases is that true justice, which is the responsibility of the legal system, is by-passed by the quest for expediency (Watson, 2010, p.80). While plea bargaining seems like a con to victims and their families, it is important to identify the pros that are present with plea bargaining and victims. With the utilization of the plea bargaining process there will never be the need for the victim to be brought to trial and re-live the traumatic crime again. A trial by jury is good for certain cases, but as we saw in the case of OJ Simpson, trials do not always obtain the desired outcome, even though evidence may point to the contrary. If cases were forced to only go to trial by jury then the damage to victims and their families may be more than the pleading to a lesser charge. The problem with trials by jury is that nothing is certain and in many cases studies show that offenders quite frequently receive the same sentence as those cases plea bargained. However, there are many pitfalls to trials by jury, because finding a jury that is truly unbiased is a difficult task in itself. Whether we would like to admit it or not our upbringing, demographic and life experiences shape who we as individuals are and will become these factors will aide the jury members to decide the defendant’s fate. But by utilizing the plea bargaining process it eliminates the uncertainty of a trial by jury, instead of not knowing all the variables and characters present in a trial. A plea bargain lays all the cards on the table and helps all involved make an educated decision that will preserve the fragility and confidentiality of the victim and their family. Since plea bargaining insures a conviction there is no danger of the offender not receiving some type of sentence, however there is one more variable that is utilized in plea bargaining that also makes individuals in society feel that plea bargaining is a con in our society. Plea bargaining is utilized quite frequently in sentence negotiations and in many instances once an individual decides to accept a plea bargain agreement this helps to reduce the sentence that they will receive. It is true that the legal workgroup knows the going rate for offenses, but in many instances to make the deals more attractive they will have suggestions on how to ease the sentence for offenders. An example of these negotiations would be when a defendant is arrested and detained while the plea agreement is negotiation. Once an agreement can be reached in many instances the time that the defendant has served while waiting for the agreement to be completed will be credited to his sentence, this is beneficial to the defendant, but in the case of victims and their families, it could mean that the defendant would serve minimal time. This may seem like an insult to the victim and their family, but the defendant has the same rights as any other citizen in the United States. If the defendant is wise enough to negotiate a better deal for themselves then the defendant has successfully utilized the legal system that was established to facilitate the quick movement of these cases through the legal process. The ability to be an experienced offender is another pro of the plea bargaining process. As obscure as the plea bargaining process seems for the in-experienced offender, to the experienced offender the plea bargaining process is an expected outcome of the legal process. The problem with the plea bargaining process is that an experienced offender with the ability to negotiate effectively can realize better plea bargaining deals. Although their defense attorney is present for advisement, experienced offenders are aware of how the plea process works and utilize these processes to obtain lesser offenses and sentences. A definite con to society is that experienced offenders have the ability to manipulate our “drive-thru” legal system to their advantage, in these cases offenders definitely do no learn from their offenses. Offenders who can manipulate the legal system will continue to utilize plea bargaining as a tool to obtain lesser sentences, which enables them to get back out into society through the revolving doors of justice we call our legal system. As a society we are continually striving to initiate a war on crime, but our legal system gives offenders every option to plea to a lesser crime and get our of jail sooner. With offenders having the option of getting out sooner and the emphasis for offenders not being rehabilitation our war on crime seems all in vein. However, it is clear that plea bargaining is a pro because it facilitates the movement and disposal of cases through our legal system at a more rapid pace, the total effect of plea bargaining on our society as a whole is unclear. If we look at individuals in society and the application of plea bargain our ability as a society to apply the plea bargaining process according to our own discretion creates a system that is uneven in its application and in many cases the legal restraint that should be present in our system are clearly lacking. Where does this leave us? Is plea bargaining constitutionally sound? Is plea bargaining a good option for our society? Are we allowing violent offenders back into society too soon and if we are releasing them too soon, would abolishing the practice aid us in the restructuring of our legal system and eventually society? The answers for all of these questions are not really straight forward and as with any process change is very hard. Initially I thought that plea bargaining was a good idea for our legal system, because with the “war on drugs” and the “war on crime” the influx in cases and criminals in the system is astounding. It is apparent that there is no possible way for every case to be entered into the system, arraigned and then proceed to a full court hearing with a jury of the criminal’s peers. The current backlog of cases in additional the problem of having overcrowded prisons and jails would only get worse. It is clear that although the Alaska and Michigan studies identified that the system would function normally, I have a hard time believing that the system would not eventually grind to a halt. Also, in this day and age where we are experiencing budget cuts and department re-assignments, it is unclear where the additional personnel and money would come from to sustain a legal system without the plea bargaining option. It is clear that the current environment our society is in does not advocate the abolishment of the plea bargaining option. However, could we change the plea bargaining process and include more limitations on the discretion of the legal work group? Changing the current system is an option, but changing the current status quo is not an easy task. No matter what changes are made to the system it would most likely include needing more personnel and that would take more money. The changes that we could make to the system could include more advocates for the defendants, because the legal process is so complex this could enable a more fair process of bargaining. This advocate would be an individual outside the legal work group that could advise the defendant of the evidence present regarding the case and the options that are being offered for the case. The defendant would still have his or her attorney, but this advocate would be an individual with no ties to the legal work group and this would hopefully alleviate the idea that the defendant was coerced into accepting the plea. This option is appealing, but it would still require additional funding a resources. A change could be made to the way that plea bargains are considered, filed and administered. As with the case of Michigan, in all jurisdictions certain cases would not be considered or eligible for plea bargaining, but for the cases that are eligible a certain procedure would need to be established and utilized in every case. Currently plea bargaining is not the same in any jurisdiction, in my opinion there is too much individual discretion in the initiation, application and administration of plea agreements. Under a new system it would be beneficial for a clear and concise procedure to be followed. This new system would be similar to a mathematical equation in which an offense is identified and there are options to plea to the identified lesser charges. These lesser charges would equate to identified sentences, it would be very similar to a menu of options. If a defendant knew they were being arrested on a certain offense then prior case precedence would identify the punishment they could expect. The pros of this system is that it would take away individual preference and discretion during the plea bargaining. Every case would be treated the same and the complaint that some cases are negotiated better or there is a preference or biased based on relationships would be eliminated as a reason to re-try a case or dismiss a case on prejudice. However, the cons to standardizing any system is that it is inevitable that with the changing face of our society and crime there will always be exceptions to the rule. Crime and criminals are almost impossible to standardize, especially since our societal ideals are constantly changing. In addition, the crimes and there consequences are constantly changing because crimes that were once considered appalling to society, may become more mainstream and socially acceptable. An example of this would be religious practice and expression, as more religions are identified in society the strange and non-standard practices of these religions are more socially accepted. I feel that the current legal and financial position that our society is in equates to an impossibility of society being able to change the current plea bargaining system. In essence we have backed ourselves into a corner that will not advocate the changes of the system. As with any system it is extremely difficult to implement change, but with the plea bargaining system change may be next to impossible. If we make changes to plea bargaining to insure that the administration of plea bargaining is level across the board it for all offenders, then the individuals that are sentenced by these new policies have the discretion to compare prior practices and the new practices. This comparison could prompt law suits stating that the new procedure and administration of plea bargaining is unduly strict. Also, changes to the current system could have a detrimental effect on the already overcrowded prison system. By limiting the choices available to offenders we will limit the avenues to reduce sentences and this could equate to more prisons being overcrowded. It is already an administrative nightmare to have overcrowded prison and to further aggravate this situation would only potentially increase the number of offender law suits against the legal system. I don’t see how we can change the current plea bargaining system, but at the same time we cannot allow it to remain an option in our legal system. We as a society are currently utilizing a practice that abuses the rights of offenders and works in the opposite direction in respects to our crime control initiatives. It is clear that we cannot advocate a practice that strips offenders of their rights, but at the same time I am appalled that we actually give offenders the option or right to plea bargain just because they have admitted to a crime. Our society has declared a “war on crime”, but the truth is that we don’t really support this hard line of thinking. Our current society has allowed for offenders to get the privilege of pleading better charges and sentences in exchange for admitting guilt. This type of negotiation is hardly a “get tough on crime” way of thinking; if we were to adhere to the policies and ideas on crime of our society then we would pass the maximum sentence for each offense. Changing the current plea system will not work because similar to gun control once you have opened the flood gates how do you return to a society without the use of that system? The answer to this question is that we must find an acceptable alternative to plea bargaining. We must invest time and resources into researching the current plea bargaining system and identifying what components of this system works. Currently we as a society are not sure what elements of plea bargaining works and which ones facilitate the release of violent offenders prior to the advocated time. Once we can identify the areas of the plea system that works for our society, we must take this information and apply it to a new alternative. However, this new alternative must have research and experiments performed to insure that it is a better option than plea bargaining. Many times in our society we chose the quickest option to address the ever changing needs of our society, but this is not always wise. It is clear that such programs do not always work and many have adversarial affects to our society. Another aspect of our legal system that must be changed is the amount of discretion the prosecutor and the judge have during such proceedings. As a society have given certain individuals in our legal system an inordinate amount of discretion and this is not always a good idea. This is especially true in the case of judges, because they are elected officials. As I identified in this paper judges are not exempt from siding with individuals that supported their campaigns and as long as we give individuals absolute discretion in decision making of cases we are setting ourselves up for failure. I know that changing the current system is almost impossible, but if there is one change that we could as a society should make to the current system, it would be to attempt to eliminate a system that believes in the eradication of individual rights. We should not support a system that believes in order to get a conviction the offender must waive his rights to trial by jury, self-incrimination and the right to confront there accusers. We must find a way to incorporate these rights even in an economically distressed system.
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