LD Jan/Feb 2018 - Plea Bargaining - Affirmative

Resolved: Plea bargaining ought to be abolished in the United States criminal justice system.

Affirmative Position

While, I believe, most Americans are content to ignore the day-to-day functioning of the criminal justice system, it is obvious to observers, we have a serious problem. Our prisons are filled to capacity and every year, thousands more are added to their numbers. The criminal justice system is overburdened with high case loads, too few investigators and prosecutors, and a backlog of cases piling up daily. For the most part, only high-profile cases capture our attention, those that break over the local or national media and invade the sanctity and safety of our homes and lives. Americans are content to know there is a system at work to keep them safe from crime but unless it personally affects us, we have better things to watch. Nevertheless, the ever growing backlog of criminal cases, hides the truth there is a corresponding, growing list of victims demanding justice. It is the U.S. criminal justice system which is tasked with meeting the demands of the victims as well as society at large, to make us safe and secure and to deliver recompense for harms. It is that criminal justice system, which is over-burdened, under-staffed, often under-funded which must meet the burdens of correctly administrating justice. For most Americans, it is the prosecutors, as agents of the state, who are the face of criminal justice. They are the ones, who ultimately have the power to decide who will be charged and forwarded into the adversarial system of discovery, trial and possibly conviction. Because these men and women wield the coercive power of the state to legitimately subject citizens to the possibility of the loss of the basic natural rights, they are held to a high ethical standard.

ABA 2017:

The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.  The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

Understandably, a major goal of the criminal justice system is to protect the innocent. Because the loss of natural rights is so serious, the system has always assumed a position it is better to risk a guilty person goes free rather than convict an innocent person. It is a major reason, the criminal justice system holds a presumption of innocence for those charged with a crime and places the burden of proof on the state, that is, the prosecutor, to prove a suspect is guilty. This burden requires work. The state conducts an investigation, it compiles evidence, it evaluates applicable law and consults other lawyers and a grand jury. When the decision is made to go forward, the prosecutor then works with the court system to schedule a trial, select a jury, and devise strategies for presenting the evidence. All of this takes time, money, and resources, necessary to ensure the innocent are not harmed, day-after-day, case-after-case, thousands of times per year in some jurisdictions.

The use of plea bargaining, some will claim, is the only way to keep the system from collapsing from the ever-growing case load. By allowing the prosecutor the discretion to cut a deal with a defendant in exchange for a guilty plea, most of the work, cost and time-crunch can be bypassed. When this happens, the prosecutor has more time to focus on the high-profile cases which capture the public attention and since most prosecutors are elected, their careers depend on successful convictions and plea bargaining is a path to political expediency, as long they adhere to certain legal standards.

Because, there are literally thousands of laws a prosecutor can often expand a single charge into a series of related charges each with their inherent penalties and the prosecutor has the discretion to decide which if any of these numerous charges may be applied in certain cases. Of course prosecutorial ethics requires them to apply reasonable, not excessive or abusive, charges.  The threat of additional charges serves as a powerful incentive for defendants to bargain for a better "deal". Further more, the prosecutor is incentivized to accept a deal so as to dispatch the case as quickly and cheaply as possible and as long as the outcome is just and fair for all involved parties, plea bargaining can be a good thing. In many cases, the prosecutor, thanks to mandatory sentencing laws which reduce or eliminate sentencing discretion by judges, can apply charges in such a way to "guarantee" a certain judicial outcome, such as a certain fine or period of incarceration. For the most part, judges will cooperate with the prosecutors and defendants and accept the agreed-to plea bargain in the interest of judicial expediency as long the standards of fairness are upheld.

Conceding Rights

People swept up into the machinery of the criminal justice system face a confusing and ominous array of decisions, language and situations which are intimidating and consequential in their effects. Most citizens have only a limited idea of what their rights are and how they apply to the situation they find themselves. For this reason, good legal counsel is essential, and good legal counsel is expensive.

Strutin 2014:

From arrest to resolution, every choice of the accused results in the assertion or waiver of an essential right. And, the decision to plead guilty waives the right to have the charges proved beyond a reasonable doubt, a conviction without trial. Indeed, it is the choice of the accused to forgo the crucible of the trial for the compromise of the plea bargain. Still, ineffective assistance of counsel deprives the defendant of making an informed, knowing, and voluntary choice by corrupting the process of information acquisition and exchange. The damage can be so severe that even a fair trial cannot restore or validate the loss of the right to choose. A plea to the charge without concessions, without education, without information as to collateral consequences or punishment options or outcomes of conviction arises from ineffective counsel and the failure of due process. [827-828]

Due process is a constitutional right guarded by a presumption of innocence and a trial by a jury of one's peers. Yet, the plea deal circumvents constitutional safe guards. This shortcut to "justice" forces the defendant to try herself without benefit of the knowledge and qualifications required to fully comprehend the options and consequences of the decision.

Strutin 2014:

Plea bargains ask the defendant to conduct an entire trial in their heads and to judge themselves after some brief legal instruction. Thus, the myth underlying plea bargains is that the accused is in the best position to adjudicate their own thoughts and actions even when they extend beyond their experience and knowledge. The guilty plea cancels the presumption of innocence and becomes proof beyond a reasonable doubt. And yet, this same testificant whose credibility would be mercilessly assailed on cross-examination at trial is for the sake of procedure vested with the qualifications of judge, jury, prosecutor, and defense counsel. Thus, by definition, the plea process is less true than the trial. While the accuracy rates of trials have been called into question, the crucible of the witness chair is infinitely more revealing than the self-assessment of the pleader allocuting from the bar.[831]

With proper legal representation and advice, a plea bargain may be the best possible outcome for all involved. All too often, that is not the case. Defendants are often destitute, or have no access to financial resources needed for good representation. They rely on court-appointed lawyers who are often over-worked and short on time. While many court-appointed lawyers are dedicated and hard-working, defendants are often at a decided disadvantage against the legal system.

Impacts On Minorities

Despite the high ethical standards prosecutors are expected to uphold, there is strong evidence that plea bargaining outcomes vary disproportionately along racial lines with white defendants having most serious charges lessened or dropped while persons of color are more likely to be convicted of their initial, more severe charges.

EJI 2017:

But just like sentencing judges, prosecutors may be subject to implicit biases when exercising their discretion. With limited information, time, and resources, prosecutors may consciously or subconsciously rely on race in evaluating which defendants are likely to commit crimes in the future, and those determinations are reflected in their plea offers. Analyzing more than 30,000 Wisconsin cases over a seven-year period, the study found significant racial disparities in the plea-bargaining process. White defendants were 25 percent more likely than black defendants to have their most serious initial charge dropped or reduced to a less severe charge; black defendants were more likely than whites to be convicted of their highest initial charge. As a result, white defendants who faced initial felony charges were approximately 15 percent more likely than similar black defendants to be convicted of a misdemeanor instead. White defendants with no prior convictions were over 25 percent more likely than black defendants with no prior convictions to receive a charge reduction. The disparities were even greater in misdemeanor cases. White people facing misdemeanor charges were nearly 75 percent more likely than black people to have all charges carrying potential imprisonment dropped, dismissed, or reduced to lesser charges. White defendants charged with misdemeanors who had no prior criminal history were 46 percent more likely than similar black defendants to have all charges carrying a potential sentence dropped or reduced to charges that carry no potential imprisonment. The study concluded that disparities in plea bargaining outcomes appear to be driven by cases in which defendants have no prior conviction, which "suggests that in the absence of evidence of a defendant's recidivism risk (e.g., when there is no criminal history), prosecutors may be using race as a proxy for the defendant's likelihood to recidivate."

The racial bias in plea deals is more explicitly exposed in misdemeanor cases. Such cases make up the majority of those the criminal justice system must deal with and because these usually involve first-time offenders, prosecutors are evaluating individuals based on criteria other than there past criminal records. This is potentially problematic because these plea deals can produce long lasting negative outcomes which again, disproportionately affect person of color.

EJI 2017:

Second, racial disparities in plea bargaining outcomes are greater in cases involving misdemeanors and low-level felonies, which suggests that when the seriousness of the offense tells them little or nothing about the defendant's propensity to commit a severe offense in the future, prosecutors may be relying on the presumption of dangerousness that has long burdened African Americans. Misdemeanors involve less serious offenses and shorter sentences than felonies, but they comprise the vast majority of criminal cases and have been shown to play a significant role in the criminalization of black males. Misdemeanor convictions can carry major consequences, including incarceration. The study found that black defendants originally charged with misdemeanors are not only more likely to be convicted than white defendants, but they are also more likely to be punished by incarceration than white defendants. Even people who receive a fine or probation as punishment for their misdemeanor convictions are likely to be imprisoned if they are unable to pay their fines or violate a condition of their probation. A misdemeanor conviction becomes part of the person's criminal history and can be considered in a future case when determining bail and sentencing, and can result in loss of eligibility for student loan assistance or public housing.

The impacts of plea bargaining are not only felt by persons of color. The harms of disproportionate prosecution are evident across various socio-economic strata as well. This means the poor and minorities of many kinds are much more likely to be negatively affected.

Viano 2012:

On the other hand, plea bargaining is criticized as well by more liberal, radical thinkers for a variety of reasons. One of them is that plea bargaining is basically a system to more easily and efficiently railroad the poor to conviction for crimes that at times they are innocent of. The criminal justice system is seen as a machinery stacked against the poor because of its complex and arcane procedural maneuvers that require skilled, experienced and expensive legal assistance to confront and manage the accusation and save the defendant from a guilty verdict. The lower middle class and the poor cannot afford seasoned legal counsel. Thus, they have no choice but to accept the prosecution’s offer that may or may not include a reduced sentence and resolve their legal problem with the hope of serving no jail time or a shorter jail term. Other powerful social variables contribute to this injustice, especially racism,  national origin,  immigrant status,  previous arrests or convictions and, at times, gender. Thus, by supporting plea bargaining as the main way of resolving criminal cases in the United States, these critics argue, the system basically denies its most vulnerable citizens the possibility of obtaining that fair trial which supposedly is the standard in the American constitutional system. The critics argue that the poor and other vulnerable groups deserve to be treated with dignity and fairness as the Constitution require.

Even at the federal level, prosecutors can leverage their power over individuals caught-up in situations in which they have no advantages. The plea deal may not always be in exchange for a guilty plea. It may be anything that satisfies the government's purposes.

Williams & Musgrave 2017:

Attorney General Jeff Sessions is pushing federal prosecutors to bypass immigration courts as part of the Trump administration’s hard-line strategy on deportation. Behind closed doors, prosecutors are pressing noncitizens to sign away their rights to make a case for remaining in the country. In the most dramatic cases, immigrants charged with crimes are signing plea agreements in which they promise they have “no present fear of torture” on returning to their home country. The pleas can block them from seeking asylum or protection from persecution. While plea agreements such as these are not entirely new — and are difficult to track — some defense attorneys who specialize in immigration fear they will become commonplace under Sessions. They’re also concerned prosecutors will push them for minor crimes that previously might not have led an immigration judge to order deportation. Immigration experts question the fairness of such provisions in plea agreements and even their overall constitutionality. Some say they might violate international treaties.

Forcing defendants to take concessions which the majority of observers may consider unfair, or perhaps unconstitutional is not typical in the U.S. criminal justice system, but when the individuals being prosecuted are on the fringes of constitutional protection, some prosecutors may choose the path of least resistance to complete their case-loads.

Justice for All?

Because of the perceived value of plea bargaining to plow through the court docket for least cost in terms of man-hours and dollars, the system functions in a way which limits the choice of defendants to the advantage of the prosecution. Faced with a choice of possibly the most severe consequences as opposed to the lesser-charge plea deal, defendants are coerced into giving up their right to a trial by jury and presumption of innocence.

Viano 2012:

The disadvantage for the defendant is that plea bargaining is a form of extortion for guilty pleas. Citizens, who have never been in contact with the justice system, especially as defendants, firmly believe that they would never even consider pleading guilty. However, the reality of prosecution may be quite different from what people imagine it to be, especially if the government has a “witness” who is ready to lie in support of the prosecution or possibly strong circumstantial evidence. At that point, the defense attorney, particularly if court appointed or a public defender, will urge the suspect to agree to a lesser sentence instead of risking a much longer one. Thus, one’s resolution to stand on one’s constitutional rights to a jury trial may weaken dramatically. As William Young, then chief judge of the U.S. District Court in Massachusetts observed in a lengthy and strong 2004 opinion: 

"To achieve its ends, the government routinely imposes a stiff penalty upon defendants who exercise their constitutional right to trial by jury… The government’s attempts to burden a citizen’s right to a jury of his peers exceed all constitutional bounds.
This is the essential key to an understanding of federal sentencing policy today – the (U.S. Justice) Department is so addicted to plea bargaining to leverage its law enforcement resources to an overwhelming conviction rate that the focus of our entire criminal justice system has shifted far away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused citizen."

Of course the state, and perhaps public observers may see the coercive tactics of the prosecution as just, as long as the proceedings are fair. Defendants, after all, are making their choices, eyes wide-open after weighing their options under the purview of counsel. In fact, the public observers are critical of some plea deals, because there is a sense they are often too lenient. Plea deals are often compared to civil settlements (i.e. law suits) in which two adversaries bargain across a table until a suitable, settlement between them is worked out. But this comparison is flawed for all of the aforementioned problems.

Garoupa & Stephen 2008:

Some scholars have argued that plea bargains are not civil settlements because civil litigants care only about (i) strength of evidence and (ii) expected punishment after trial. These scholars argue that there are important factors such as psychological bias and structural forces (the quality of the defence lawyer, hence the wealthy will be favoured), agency costs, bail and detention, legal rules, sentencing guidelines and statutes) that produce skewed bargains and hence unfair contracts. A second line of reasoning points out that plea-bargaining cannot be seen as the formation of voluntary contracts because the affected parties lack the incentive to assure public interest in effective law enforcement (third-party effects) and deny defendants a bargaining position to guarantee fair exchange. In particular, prosecutors face pressure for convictions and plea-bargaining is a mechanism to get them at the expense of procedural guarantees. There might be overcharging in order to increase pressure for a guilty plea. These criticisms go in the direction of underlining the weak position of the defendant and the strong role of the prosecutor. We think that an overcharging effect cannot be so dramatic because there are two signals concerning guilt (one for the prosecutor and another for the jury and the judge), and both are correlated. Hence, the result must depend very much on the rules of discovery and evidence as well as on the ability of the defendant's lawyer. [335-336]

Unfortunately, the public observers are not always aware that one of the major goals of the criminal justice system, namely protection of the innocent, is falling short with alarming frequency due to the fact that defendants are forced to evaluate their positions and options under duress with minimal information. This is a recipe for poor decision making.

Viano 2012:

One obstacle that many defendants encounter when dealing with a criminal accusation is how to evaluate accurately and rationally the weight and credibility of the evidence against them during the plea negotiations. This is an inherently unjust flaw of plea bargaining because the outcome of the negotiations is less driven by the evidence proffered and consequently less based on actual guilt or innocence than a verdict resulting from a trial. This means then that at least some innocent defendants, who normally would go to trial, decide to plead guilty in order to obtain a less punitive sentence. This, of course, applies to guilty defendants as well. We do not know how many innocent defendants are wrongly convicted at trial. Since the advent of DNA as a key element of the evidence presented at a trial, there has been growing evidence of past wrongful convictions.  According to the Innocence Project  there have been around 300 exonerations after conviction in the United States starting in 1989, with the majority taking place after the year 2000. Among the wrongly convicted people were 17 sentenced to death. Fifteen more were charged with crimes carrying the possibility of the death penalty but were not so sentenced. The mean time served by people wrongfully convicted was 13 years with a cumulative total of 3,876 years served by all the finally exonerated convicts.  The mean age of their conviction was the prime of their lives, 27 years. The majority, 183, were African-Americans followed by 85 Whites. In 144 of the exonerated cases, the true suspect was also identified. According to the Innocence Project, since 1989, there have been tens of thousands of cases where those who were singled out and pursued as primary suspects for a crime were eventually found to be wrongly accused, thanks to DNA testing.

The inability of defendants to properly weigh their options, is not just a problem of not having appropriate legal representation or adequate information about the choices. More often than not the choices are skewed heavily by the threat of a much more severe outcome if the plea deal is not accepted.

Viano 2012:

Underlying the offer is the obvious threats that, if the plea is not accepted and agreed upon, the accused will see the charges multiply so that the punishment will be as harsh as possible. Should the defense fail at trial, the defendants is then also liable to receive the maximum penalty allowed and often imposed under the law for those offenses because of determinate sentencing rules that do not allow the judge to exercise any meaningful discretion. Sentences for crimes in the United States are quite severe, generally much longer and harsher than in Europe and other countries. Faced with the threat of enhanced and increased charges leading to a long mandatory prison term, possibly a life sentence, on the one hand, and the offer of a reduced sentence if there is a plea of, on the other, innocent defendants often opt to make a false confession, plead guilty and receive the promised reduced sentence, even if they did not commit the crime. 

When the criminal justice system fails to protect the innocent there is a serious problem which undermines the integrity of the system. This erodes public confidence in the system.

Viano 2013:

There is ample literature stressing the crucial importance of the confidence of the public in the criminal justice system and of the perception by the citizenry that the system and its operations are legitimate.  Without such confidence, respect and legitimacy the justice system cannot perform successfully; the rule of law is undermined; and many citizens will not cooperate and support the criminal justice system. The system can ensure compliance with the law only if it is considered fair, impartial and legitimate. Procedural fairness is extremely important to the public in its dealings with the justice apparatus.

Given the many problems of plea bargaining, including the nullification of constitutional rights, disproportionate sentencing of minorities and the disenfranchised, false convictions of the innocent and erosion of public confidence, then why do we continue to support plea bargaining in the U.S. criminal justice system? Viano believes the solution may be rooted in political choices more than anything else.

Viano 2012:

The defense most often used to justify the widespread use of plea bargaining is a practical one: tribunals in the United States are so busy and congested with cases that they would be paralyzed if every case was given a full trial. That may be true. However, instead of supporting the system as is, it might be more useful to examine what is behind the high number of criminal cases. One of the major reasons for these many is the exponential expansion of the crime list at the federal and state levels. This is especially true of the so-called “war on drugs.” It is these decisions that are transforming millions of Americans into criminals and ruining their lives and those of millions more of their loved ones. Just ending the war on soft drugs, like marijuana and some others, would immediately have a dramatic effect on cutting back the courts’ caseloads. The role and the influence of the prison industry (whether privatized or not, prisons are big business) should also be contained and limited. There are indeed powerful financial and political interests that support maintaining and expanding the number of prosecutable crimes in the United States so that prison population levels continue to be high.

The Value Premise

The Affirmative debater will have little problem finding evidence supporting the view that plea bargaining should be abolished, at least as it functions today. The evidence presented in this article shows how the due process clause of the 5th Amendment is nullified by the defendant's voluntary confession. Procedurally, due process suggests a fair and open proceeding. Substantially, due process incorporates the right to legal counsel, the right to a trial by jury, and the presumption of innocence. The most obvious value we are concerned about is justice, loosely defined as giving each her due.  Of course, criminals are due some kind of retribution for their crimes, but more to the point, they are due a process which presumes their innocence until proven guilty beyond a reasonable doubt. The value criterion of upholding due process is impossible in a world where plea bargains settle more than 90% of all cases. We may also look at other values. Consider the impact on human dignity are stripped of their rights without substantive due process. Consider then impact on autonomy as defendants are boxed-in by the forces of state power and given options which only work against their self-interests. We may look to governmental legitimacy in so far as the government has a duty to protect the innocent. Plea bargaining, on the other hand erodes public confidence in its criminal justice system, when the innocent are wrongly convicted.

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Sources:


ABA (2017), The American Bar Association,  Fourth Edition of the CRIMINAL JUSTICE STANDARDS for the PROSECUTION FUNCTION.
https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEdition.html


EJI (2017), Research Finds Evidence of Racial Bias in Plea Deals, October 26, 2017, EJI, Equal Justice Initiative. https://eji.org/news/research-finds-racial-disparities-in-plea-deals


Garoupa, N & Stephen, FH (2008) Why Plea-Bargaining Fails to Achieve Results in So Many Criminal Justice Systems: A New Framework
for Assessment, 15 Maastricht J. Eur. & Comp. L. 323 (2008). https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=1481&context=facscholar


Strutin, K (2014), TRUTH, JUSTICE, AND THE AMERICAN STYLE PLEA BARGAIN, Albany Law Review, 10/7/2014. http://www.albanylawreview.org/Articles/Vol77_3/77.3.0825%20Strutin.pdf


Viano, EC (2012), Plea Bargaining in the United States: A Perversion Of Justice, Revue internationale de droit pénal, 2012/1 (Vol. 83). https://www.cairn.info/revue-internationale-de-droit-penal-2012-1-page-109.htm

Williams, B & Musgrave, S (2017) FEDERAL PROSECUTORS ARE USING PLEA BARGAINS AS A SECRET WEAPON FOR DEPORTATIONS, The Intercept, Nov 15, 2017. https://theintercept.com/2017/11/15/deportations-plea-bargains-immigration/