LD Jan/Feb 2018 - Plea Bargaining - Negative

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

Negative Position

An analysis of the practice of plea bargaining as a prosecutorial tool in the criminal justice system reveals a series of potential objections which we have addressed in the Affirmative position. At the outset, I should point out that many of the objections are not unique to plea bargaining. For example, trial outcomes for individuals are still heavily in favor of those individuals who have sufficient money to hire the best legal counsel. This fact was documented following the ban of plea bargaining in Alaska in 1975.

Gabriela 1992:

Rubinstein and White argued that though the ban on plea bargaining has placed more decisional  responsibility on judges, the ban has been unable to eliminate badly exercised discretion. For instance, a defendant's income still affects the quality of the trial. Hence, there are  indications that race, income and employment status still  determine the impact of sentencing.

It is important to understand from the outset, plea bargaining has had its critics and challenges and so far it has survived judicial scrutiny by the courts including the United States Supreme Court. Thus it is clear, in principle, plea bargaining is legal. Perhaps, as Negative debaters, we can concede that plea bargaining is not always perfect in its execution. But the practice of law is after all, a practice which is executed to varying degrees of skill by practitioners elected, appointed or hired to the satisfaction of the public at large. So, while the criminal justice system makes a practice of dealing directly with certain individuals on a one-on-one basis, criminal justice as a state institution is answerable to the public from which it acquires its authority as an agency responsible for upholding the social contract, in particular, providing safety and protection of property. Therefore, we see the criminal justice system as serving a utilitarian purpose for the greater good. 

Because the state has the power to destroy individuals, the U.S. constitution provides limits on state power. But we do well to remember, the state is charged with guarding the general welfare and occasionally, the courts have found that limits to individual freedoms are warranted in the interests of the common good. To be sure, the courts are very protective of individual rights when it comes down to protecting potentially innocent people from being swept up into a miscarriage of justice, but the state has a duty to fulfill its function for the benefit of the people. To that end, various procedures are instituted as safe-guards to ensure the possibility of mistakes are minimized and if they do occur, there are procedures for redress.

The Practical Rationale

The literature is clear, that due to any number of possible reasons, the number of people passing through the criminal justice system has greatly increased at enormous cost to society as a whole, in terms of money, personnel, facilities, etc. That cost is paid through taxation and there is no need to convince anyone, that increasing taxes to pay for courts, prosecutors, and prisons is not always possible. The result, without plea bargaining, would be a serious backlog of cases, often involving the holding of prisoners in cells awaiting their day in court, which of course is increasingly delayed due to lack of time and resources necessary to process all the others awaiting their day of justice. Plea bargaining, a settlement in which the prosecutor agrees to reduce or dismiss certain charges in exchange for a service, agreement or plea from a defendant, allows the system to bypass much of the standard time-consuming procedures inherent in deciding cases by jury trials. The deal not only serves a practical time and cost-saving purpose, it permits procedural safe-guards, to minimize mistaken confessions.

Alschuler 1981:

A guilty plea typically involves, not one confession, but several. Many defense attorneys maintain that they cannot ethically permit defendants to plead guilty when they claim to be innocent, and when a defendant is represented by one of these attorneys, he must first acknowledge his guilt to his lawyer. Then the defendant often must explain his plea to his family or to a peer group whose affection he wishes to preserve. Finally, the defendant must confess in public to the court. A judge is rarely content with a speedy muttering of the single word "guilty." He commonly requires an affirmative answer to the question, "Are you pleading guilty because you are guilty and for no other reason?"; and he may require a detailed recital of the circumstances of the crime. [666-667]

Moreover, the retribution associated with plea bargaining is not substantially different than what would have been experienced in full jury trial.

Howe 2005:

Based on perspectives earlier applied in the civil settlement context, proponents claim that plea bargaining is justified because it largely mirrors the results that would have occurred after a highly regulated trial process, discounted to reflect uncertainty and adjudication costs. Plea bargaining is “efficient” in punishing crime if it achieves the same overall results as trials while expending fewer resources. Likewise, plea bargains are not systematically unfair to defendants if they only reflect discounted results from a trial process that we accept as legitimate. [601]

From a utilitarian point of view, the procedures lead to nearly the same satisfactory ends, but the plea bargain does so in a much more cost-efficient way which lessens the burden on society. But for the sake of the deontologists in the room, the safe-guards erected by the courts and counsel, to protect the innocent, minimize harms to individuals.

The Societal Check on Outcomes

The officials who serve as agents of the criminal justice, the prosecutors, judges, court staff, etc. are generally elected or appointed by individuals selected by the citizens whom they serve. Therefore, these individuals assume a sense of responsibility to carry out their duties to the satisfaction of the electorate. They are responsive to the desires of the people to be tough on crime, and give the recompense due.

Howe 2005:

Because of these motivations, prosecutors and judges will weigh what they perceive as the deserved punishment against the benefits they see in a disposition by plea. Officials measure deserved punishments differently; the perceived benefits of a guilty plea vary from one case to the next, and jurisdictions vary regarding perceptions of the need to promote guilty pleas generally. Nonetheless, prosecutors and judges prefer higher sentences to lower sentences, up to the sentence that they believe the defendant actually deserves. Prosecutors and judges willingly trade some deserved punishment in individual cases to maximize the punishments they can secure. They must make this trade-off because they have limited resources. The trade-off works because convictions by jury trial require far more of their resources than bargained guilty pleas and because both parties in a criminal case have incentives to avoid the uncertainties of litigation. Prosecutors and judges could try always to seek the maximum deserved punishment, but most defendants would demand a jury trial, and, assuming no changes in the governing constraints, the system would quickly become inadequate. Courts would necessarily dismiss cases in which legitimate charges had been filed due to the inability to prosecute them. Furthermore, prosecutors would decline to bring charges in many legitimate cases. Given these circumstances, prosecutors and judges maximize punishment by extending some leniency for guilty pleas. They obtain a certain conviction with some punishment in the case at hand and a large time savings that can be used to prosecute other cases. [604-605]

The trial by jury process of deciding cases, is a risk not only for defendants but also prosecutors who could potentially lose a case based on some insignificant procedural error, or due to failure to adequately persuade twelve citizens. This capacity to bargain for convictions often has the effect of yielding more convictions than would have been possible if every case went to trial which helps to satisfy societal expectations.

Howe 2005:

Suppose that we are in a jurisdiction in which the prosecutor bargains not only over charges and sentencing recommendations but actual sentences, with the judge merely holding veto power. Assume that a prosecutor has six armed robbery cases to prosecute, among many others. She has spoken to the six defense lawyers and concluded that each case carries a ten percent chance of acquittal, but that the deserved and probable sentence for each defendant after a jury-trial conviction is fifteen years of imprisonment. The maximum possible sentence is twenty years, and no mandatory-minimum sentencing requirement applies. She concludes that each case will require six hours of court time for a jury trial and one hour of court time for a guilty-plea hearing. In a six-hour period, she could try one case and, hopefully, secure a conviction, which would probably result in a fifteen-year sentence. The other five defendants would not be prosecuted. Alternatively, in that same period, she could proceed with six guilty plea hearings and obtain certain convictions. Suppose that the prosecutor knows that each defendant would accept a plea bargain if it carried only five years of imprisonment. Which option better serves the public interest in punishing crime? Obviously, six pleas at five years apiece is better than a ninety percent possibility of a single fifteen-year sentence. The goal of maximizing punishments compellingly favors bargaining. [605-606]

The Cost of Abolition

Let us assume an America in which plea bargaining is abolished. The experts tell us, without significant changes to the standard process of adjudicating cases, the system would quickly collapse. Thus some have pitched proposals such as decreasing leniency in punishments, dropping charges against many classes of misdemeanors, or changing the laws to redefine many acts which are today considered criminal.

Howe 2005:

Some commentators have suggested that abolition could be achieved without major costs, but their proposals are illusory. For example, based on a study of Philadelphia courts, one leading critic of plea bargaining contended that short bench trials could almost entirely replace plea bargains as the secondary means for resolving criminal cases. According to the study itself, this conclusion was probably too optimistic. Nearly half of the cases in the Philadelphia courts ended with a guilty plea based on either explicit concessions from the prosecutor or implicit concessions from the judge. Also, the trade-off of guilty pleas for bench trials was arguably only a triumph of form over substance. The bench trials were extremely short — generally only a few minutes longer than a guilty plea — and judges richly rewarded jury waivers through sentencing concessions. The Philadelphia system could be viewed as merely an effort by judges to reward jury waivers and to allow for the correction of prosecutorial overcharging where the prosecutor, for reasons particular to that city, did not provide these functions through bargaining. The system did not eliminate bargaining for actual guilty pleas and, to the extent that it reduced such bargaining, arguably only substituted an essentially equivalent method for extending leniency to reward purely strategic behavior by defendants. [609-610]

Amazingly, as seen in the Philadelphia experience, plea bargaining could not be eliminated. In fact the discretion usually applied by prosecutors in a plea bargain negotiation was shifted to the judge. Thus concessions continued unabated as a matter of practicality in processing cases.

Howe 2005:

The argument against fundamental systemic change to try to eliminate plea bargaining rests largely on the uncertain, although clearly substantial, costs involved. If jury trials produce results that we like, while plea bargaining produces results that we do not, we may prefer jury trials although they are more expensive. However, achieving a balance between results and costs is preferable where the cost of perfection is exorbitant. The argument for plea bargaining reflects this perspective. The costs of eliminating bargaining, although difficult to quantify, are plausibly thought to far outweigh the costs of leniency in punishment that result from continuing to allow it. The perceived imbalance in costs surely helps explain the lack of truly successful efforts in recent decades to end bargaining. All of the options for eliminating plea bargaining are infeasible in practice. Amending the Constitution to entitle criminal defendants to only short, nonadversarial, non-jury trials is too controversial itself to serve as a remedy for leniency in bargaining. The negative consequences associated with this alternative begin with its tendency to promote erroneous trial convictions. The notion of decriminalizing a large portion of the behavior currently deemed criminal is at least equally extreme. At best, legislatures might marginally stem the continuing expansion in the use of the criminal sanction. The only remaining option focuses on money, and the increases would have to be enormous. Current police, court, and corrections budgets would have to increase at least several times over. As for the practicalities of this latter approach, the only uncertainty is whether it is significantly less implausible than the other two potential remedies. [613-614]

Punishment for Trial

Perhaps we can say that the granting of leniency in plea deals makes the punishments meted out in trial cases all the more severe. I don't know. I do know that conviction of crimes carry prescribed punishments and often judges have little discretion in the severity. In some cases, judges may reduce the punishment below the maximum in consideration of various circumstances, but in no case can the judge issue a punishment greater than the maximum prescribed by law.

Howe 2005:

Post-trial sentences are appropriately understood as deserved punishment for crime. Those responsible for setting criminal sentences — legislators, sentencing commissions, trial judges, and prosecutors — base their penal decisions upon the precept of justice that “undeserved” punishment is “indefensible on any theory.” The idea that a person should not suffer undeserved punishment corresponds to deeply and widely held notions of fairness in our society. The force of this sentiment leads to the conclusion that the relevant actors in criminal sentencing do not desire to impose more punishment after trial than they believe criminal offenders deserve for their crimes. This notion of deserved punishment can explain post-trial sentences, although retributive theory does not lead to objective measures concerning the maximum deserved punishment for each crime. Notions of desert derive from “contemporary community morality.” As Professor Stephen Morse has emphasized, “[i]t is possible in any society to rank the seriousness of criminal offenses and to assign to each a punishment that the society at that time considers proportional to the seriousness of the offense.” While this assignment may not be “an invariant, objective deserved punishment,” it is “the deserved punishment at that time and in that place.”  [619-620]

There is an adage in the popular vernacular, "let the punishment fit the crime" and ultimately it is, once again, the society at large which provides the check on the adequacy of punishments. The laws and their administration are carried out under the directive of the people served. The just deserts of crimes are not increased in a world which permits discretionary leniency to serve the common good.

On Overcrowding and Innocent Confessions

Finally I wish to answer two other common complaints about plea bargaining. Some researchers have seen correlations between the increase in plea bargaining and the increase in overcrowding in the prison system. Of course we can cite many sources of the massive increases in the so-called wars on crime and drugs as being a significant contributory factor to increases in overcrowding and perhaps the backlog of cases which necessitate plea bargaining. Nevertheless, logic would dictate that leniency in plea deals could yield a positive reduction in prison populations if prosecutors were made aware of the budget constraints under which these upstream systems function, since most of the time, they are only focused in their own costs.

Gershowitz 2008:

The problem of mass imprisonment in the United States took decades to create and it will not be cured overnight. Nevertheless, there are steps that can be taken to encourage the system's most powerful actors-prosecutors-to exercise their authority in a manner likely to decrease incarceration. Social psychology research suggests that if prosecutors were better advised of escalating imprisonment numbers and the overcrowding of prisons and jails, they would likely offer marginally lower plea bargains. The marginally lower plea bargains would thereby reduce incarceration at the margins. Over time, these marginal decreases in incarceration would have a noteworthy impact on the mass imprisonment problem. Legislatures have an incentive to institute an informational campaign because it carries a low risk of being labeled soft on crime while holding out a potential benefit of significant savings on correctional costs. 

Finally, there is the problem of the conviction of the innocent. It is difficult in the face of clear evidence this is a problem and one that is not easy to solve despite safe-guards already imposed by the criminal justice system.

Howe 2005:

Current law and practice surrounding plea bargaining reflect ambivalence about this problem. American lawmakers have not abolished plea bargaining to prevent innocent people from pleading guilty, despite both warnings from academics that bargaining promotes false guilty pleas and convincing evidence that they sometimes occur. The Supreme Court has also concluded that a trial court can accept a guilty plea from a defendant who proclaims his innocence as long as a strong factual basis for the plea exists. At the same time, many trial judges take precautions to try to prevent guilty pleas by innocent persons. At the guilty-plea proceeding, many judges require the defendant to assent to or even recount in his own words a story of guilt as a prerequisite to entering the plea, and they will rescind the plea before sentencing if the defendant proffers a claim of innocence.[630]

I guess we can concede these "false negatives" are a cost of plea bargaining but a cost the criminal justice system and society at large considers outweighed by the harms of trying to administer justice in a world which increasingly demands recompense for crimes but would deny plea bargaining. The current system is not perfect and no doubt we can make some improvements but we cannot say plea bargaining ought to be abolished.

The Values of Negating

One of the overarching themes in this analysis has been the concept of utilitarianism. A moral philosophy which is summarized in the idea of the "greatest good (or happiness) for the greatest number". If states are considered moral agents, they function under utilitarian principles. Thus, the morality of states and governmental legitimacy are closely related. States have a moral obligation, or a legitimate duty to administer justice in the most expeditious way possible.  Justice is also a good value premise, since the negative world maximizes the distribution of just deserts. This case is about serving the common good as a way of fulfilling the social contract.

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Sources:


Alschuler, AW (1981) The Changing Plea Bargaining Debate, 69 Cal. L. Rev. 652 (1981).
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2238&context=californialawreview


Gabriela, A (1992), "An analysis of plea bargaining" (1992). Theses Digitization Project. 744. http://scholarworks.lib.csusb.edu/cgi/viewcontent.cgi?article=1744&context=etd-project


Howe, SW (2005), THE VALUE OF PLEA BARGAINING, Oklahoma Law Review Vol. 58:599, 2005.
http://adams.law.ou.edu/olr/articles/vol58/howe584.pdf


Gershowitz, AM (2008), "An Informational Approach to the Mass Imprisonment Problem" (2008). Faculty Publications. Paper 1264.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2292&context=facpubs