Justice is the ideal upon which proceedings in a court room strive to achieve. In the UnitedStates, however, controversy has greatly arisen over the years with regards to how this “justice”is applied and whether it is truly attained when the decision of the court has been established.Plea bargaining, in particular, presents one of the most controversial elements of the trial process. For skeptics, it presents nothing more than a cop-out for attorneys to close cases quickly without actively pursuing a more definitive form of justice equitable to the crimes committed against a person or persons.
On the other hand, advocates on behalf of the plea-bargaining process contend that it is through this tool that certain levels of justice can indeed be attained while at the same time avoiding the prospect of a long and extremely expensive trial process. By estimate, according to the New York Times, 97% of federal cases and 94% of state cases are all plea bargained. The question then becomes whether such methods are truly just or if they more treat the trial process as quick checks on a legal scorecard. In this analysis, I will compare the pros and cons of plea bargaining. After both sides have been given equal representations in my discourse, I will attempt to make the case for why plea-bargaining imposes one of the largest“unconstitutional undermining of justice” within the U.S. trial process.
Surprisingly, with irrefutable evidence showing that the great majority of criminal defendants plead guilty due to the prospects of lenient treatment by the state, scholars have conceded that the perception of lenient sentencing as a result of the “plea-bargaining” process is not misplaced.
According to the California Law Review, “Professor Beverly Blair Cook found, for example,that violators of the Federal Selective Service Act who were convicted at jury trials received sentences about twice as severe as offenders who pleaded guilty, and statistics compiled by theAdministrative Office of the United States Courts indicate that the "sentence differential"between guilty-plea and trial defendants may be even more substantial in other offense categories” (Alschuler, 1981). To skeptics, this is an alarming reality pertinent to the question of how justice is served and whether it was administered correctly.
For there to even exist such sentencing disparities automatically could make victims of crime perceive prosecuting attorneys as lazily subjecting the public interest and security to being bargained away. In essence, rather than imposing sanctions that correlate equally with the crime being committed in protecting the state and victim’s interests, plea –bargaining simply allows for criminals to receive some measure of reduced sentencing simply for entering a quick plea of guilty.
Critics have also questioned the constitutionality behind the plea-bargaining process.According to the University of Southern California Law Review, “Under the unconstitutional conditions doctrine, the government cannot condition a benefit on the recipient giving up a constitutional right, even if the government is not required to provide that benefit in the first place. A benefit conditioned on surrendering a constitutional right creates an impermissible burden on that right, even though the burden may be characterized as being only indirect” (Wan,2007).
The unconstitutional conditions doctrine further strengthens its claims by the current practice that states condition benefits on the presumption that recipients will relinquish their rights to have a hearing before a grand jury. Further still, critics argue that the system seems more geared towards rewarding defendants for waiving their constitutional rights while subsequently punishing those who choose to practice their right to go to trial. If the 5th and 6th Amendments are infallible, then the unconstitutional condition doctrine would argue that forcing individuals to give up their rights by imposing on them a pressured “plea bargain” would be in direct violation of those rights. According to the University of Southern California Law Review, “Plea bargaining clearly satisfies the criteria for an unconstitutional conditions problem.139 The benefit of reduced charges or a more lenient sentence is one which the government is allowed,but not required, to provide, and the Fifth and Sixth Amendment rights listed above are all fundamental rights, which the defendant has a choice of whether to exercise” (Wan, 2007).
Countering the advocates’ claim that the plea bargaining process cannot be considered unconstitutional conditions because the right to choose still lies on behalf of the defendant,critics cite Blackledge v. Perry, more commonly known as the “vindictiveness case.” In this case, according to the University of South Carolina Law Review, the Court ruled that it was unconstitutional for a prosecutor to levy more serious charges on the defendant when he or she practices their right to a trial del novo (Wan, 2007). Using this case as a baseline, critics argue that there is direct linkages between Perry and plea-bargaining, because prosecutors that “plea bargain” continuously penalize defendants that would rather go trial by increasing charges as well as submitting recommendations for harsher sentencing to the court. It is then stands to reason why the Supreme Court has continuously ruled in favor of plea-bargaining, despite evidence linking the practice to the Court’s reasoning in Perry.
Drawing from the continued reasoning by the Supreme Court in upholding the legitimacy of plea-bargaining, the logic begins to seem rather unconvincing and circular. Specifically, theCourt continuously holds that the Due Process Clause’s granting of certain liberties remains unquestioned unless the government burdens them on the premise that such infringement serves a compelling state interest, which could appear as ambiguous legal rhetoric that seems ratherar bitrary.
Slipperier still, the Court has held that the evidence of a willingness to rehabilitate as well as remorse in “guilty-plea” defendants separates them and their sentencing (which appears to be routinely less severe) from other defendants who’d rather fight the system than seek rehabilitation. But even this logic is riddled with loopholes. According to the California LawReview, “Moreover, the argument that a guilty plea evidences remorse tends to move in a circle.One can imagine, if one likes, that a defendant once pleaded guilty out of remorse and therefore received a relatively lenient sentence.
A second defendant, however, after noting the sentence that the first defendant received, may have pleaded guilty, not because he was remorseful, but because he hoped to obtain the same favorable treatment. From the day of this first strategic guilty plea until the present, no one has been able to tell simply by examining a defendant's plea whether or not he was remorseful. As Professor Arthur Rosett has observed, "In many courts, the guilty plea process looks more like the purchase of a rug in a Lebanese bazaar than like the confrontation between a man and his soul (Alschuler, 1981). Coercion, if one were take this entire issue and summarize it into a singular term of legal identification, seems to be the benchmark for how the plea-bargaining process is conducted (Wan, 2007).
Basically, no matter how the Court may continue to convolute the issue in legal rhetoric , the plea-bargaining tool only seems to present itself as a judicial “card-trick” in order to gain leverage over defendants who are left between deciding to exercise their rights to a trial by jury and risk heightened sentencing, or to forfeit these rights with the prospect of prosecutorial leniency.
This is not to say that the argument in favor of plea-bargaining is without “teeth” in a matter of speaking. As a matter of fact, arguments in favor of plea-bargaining have reasoned with theCourt that plea-bargaining presents a structure adjacent to the 6th Amendment’s mandate for aright to counsel. According to the Yale Law Journal, “The Court’s recent plea bargaining jurisprudence ‘made clear that ‘negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.’ The cases are also testament to the Court’s recognition that ‘plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system,’ and to the reality that ninety-five percent of all convictions follow guilty pleas and not trials” (Roberts, 2013).
The reasoning continues to posit that the defense counsel has just as much a role in plea-bargaining as the prosecutor. And although the Court has continuously ruled that there is nospecific constitutional right to plea-bargaining; however, when negotiations do take place, the right to bargaining counsel under 6th Amendment provisions can be clearly applied.In fact, many of the accredited non-constitutional sources like the ABA’s Standards forCriminal Justice have posited the bargaining process and related discussions as the duty of the defense counsel to ensure that his or her client chooses the best option that is available for them based on the facts on the case and the likelihood that the defendant will win at trial.
Further reasoning highlights the autonomous decision-making of the defendant, in being ableto take the liberty to either accept or reject the prosecution’s offer. According to theNorthwestern Law Review, “The case that sanctions this type of extortion is Bordenkircher v.Hayes,' where the Supreme Court permitted a prosecutor to ‘up the ante’ in order to obtain a guilty plea on a bad check charge… An indictment as a repeater would subject Hayes, if convicted on the bad check charge, to a mandatory life term. Nevertheless, Hayes exercised his constitutional right to a jury trial and, true to his word, the prosecutor obtained the repeater indictment. Hayes was convicted and sentenced to the mandatory life term. In affirming the conviction, the Supreme Court explained that there was no "punishment or retaliation so long as the accused [was] free to accept or reject the prosecution's offer” (Smith, 1987).
The necessary disparity, according to the supporting argument, is that there is little evidence to prove that justice is minimized substantially in the plea-bargaining process for more serious offenders. In essence, convicted offenders with criminal histories normally are not given the option of escaping incarceration or long prison sentences. The only apparent beneficiaries of this process seems to be offenders convicted of less serious crimes with no prior felony convictions.
This, in effect, puts the coercion argument of the skeptics into question, according to the supporting argument, in that data and logic do not provide significant amounts of evidence to prove that defendants are coerced from exercising their right to a trial by jury. It stands to reason then, that the plea-bargaining process more appeals to the rationality behind the criminal justice system as opposed to it emulating an underlying issue of “political justice.”
According to theNorthwestern Law review, “The coercion argument rests on the claim that plea bargaining makes possible a dual sentencing structure in which defendants who proceed to trial are sentenced more harshly than those who plead guilty. The data examined in this article indicate that when actual sentences are compared to expected sentences, little evidence emerges to support the coercion argument. While a substantial difference exists between the proportion of defendants incarcerated after pleading guilty compared to those convicted at trial, this difference is largely attributable to two factors: first, not all defendants who pleaded guilty would have been convicted at trial, and second, characteristics of cases convicted by plea differ in important ways from those resulting in conviction at trial” (Smith, 1987)
Defendants, in retrospect, are then given the option of weighing their chances of winning at trial against the leniency offers by the prosecutor and are able to freely make decisions based upon the advice of their defense counsels, taking the best option that is most readily available to them.A bonus effect, is that such processes allows attorneys to pursue other multiple cases that they otherwise couldn’t have dealt with had they continued to be burdened by a lengthy trial process that would place greater expenses on the taxpayers. As is concluded by the Northwestern LawReview, “Collectively, these findings suggest that plea bargaining is a neutral component in the processing of criminal cases which neither erodes the deterrent effect of law nor results in a two tier sentencing system…The manifest consequence of such a system is that legal sanctions are applied to a larger base of offenders, thus heightening the certainty of punishment. Hence, rather than eroding the deterrent effect of punishment, plea-bargaining may contribute to the general deterrent effectiveness of legal sanctions” (Smith, 1987).
Personally, I find it rather egregious when the Supreme Court rules on issues such as plea-bargaining from a position of pragmatism instead of strict legalism. Plea-bargaining, in and of itself, was never contemplated or given a second thought by the Framers who drafted theConstitution and the Bill of Rights. It was never even a debate about how jury trials could be legitimately replaced by a superior charge/sentence bargaining system. As a matter of fact, the entire system could be argued to have departed from the original intent of the court system in attaining justice through trial by juries. According to The Cato Institute, “As William Young,then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004opinion, ‘The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused” (Lynch, 2011).
In the name of “convenience,” justice is no longer the cardinal ethic as much as the desire to“turn cases” through a quick bargaining process, which explains why the majority of cases never reach the trial phase.
The question of effectiveness is relative to one’s definition of “effectiveness.” On one hand, the plea-bargaining process can be argued to be effective in that it allows the courts to process cases at a quickened rate and minimizes congestion and “backing up” of cases. On the other hand, it can be argued that its effectiveness in attaining justice is weakened. Considering that justice is the cardinal ethic for the court system, justice (quality) is being substituted for volume of cases closed through legal bargaining (quantity). The issue seems to descend in a seemingly never-ending whirlpool of legal controversy as justice becomes convoluted in a series of question marks centered on whether convenient sentencing through leverage games attains justice at amore successful rate than do jury trials.
From an originalist perspective, federal expenditures on maintaining an effective court system is one of the only things that government should be focusing taxpayer funds on under the mandate of the 16th Amendment. In Article 1, Section 8, Clause 1, “The Congress shall havePower to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excisess hall be uniform throughout the United States.” If the reality of a clogged court system and heightened expenses for jury trials are the main concerns for using the jury process, should the defendant choose to in any given case, it would then be plausible that re-prioritizing government spending by eliminating wasteful spending programs (Ending The War on Drugs, decreasing the welfare state, and limiting foreign aid) and reallocating much of those tax funds to the court system to increase efficiency could prove absolutely effective in attaining an honorable legal standard that draws closer to the ideal of attaining justice in a criminal proceeding (Lynch,2011).
One specific alternative for plea-bargaining in order to increase efficiency could be a jury waiver system. According to the University of Southern California Law Review, “A jury waiver system, wherein a defendant waives his or her right to a jury trial and receives, instead, a bench trial, is a less restrictive alternative than plea bargaining. While a jury waiver still necessarily burdens a defendant’s right to jury trial, unlike plea bargaining, the defendant is still able top reserve, for use in a trial setting, various other constitutional liberties, among them, the privilege against self-incrimination, the right to confront adverse witnesses and the right to compulsory process for obtaining favorable witnesses (Wan, 2007). The article continues to posit that regardless of how the criminal justice system is convenience, the ultimate responsibility of the court is to establish the guilt of a defendant beyond a reasonable doubt by means of animpartial trial process. That said, the jury waiver system allows for a bench trial, where the defendant is still granted the opportunity to present a defense.
The Supreme Court has continuously ruled that plea-bargaining is a “necessary evil” in order to make the judicial process more effective. Granted, but such a premise leads the justice system to then rationalize a constitutional argument for it, something that late Justice Antonin Scalia vehemently opposed. In a dissenting opinion in Lafler v. Cooper, where the Supreme Court struck down a felony conviction for attempted murder,
“But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt…. Today, however, the Supreme Court of the United States elevates plea-bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, ‘it is the criminal justice system.’ Frye, ante, at 7 (quoting approvingly from Scott 1912). Thus, even though there is no doubt that the respondent here is guilty of the offense with which he was charged; even though he has received the exorbitant gold standard of American justice—a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring) the requirement of a unanimous guilty verdict by impartial jurors; the Court says that his conviction is invalid because he was deprived of his constitutional entitlement to plea-bargain…Released felonAnthony Cooper, who shot repeatedly and gravely injured a woman named Kali Mundy, was tried and convicted for his crimes by a jury of his peers, and given a punishment that Michigan’s elected representatives have deemed appropriate. Nothing about that result is unfair or unconstitutional. To the contrary, it is wonderfully just, and infinitely superior to the trial-by-bargain that today’s opinion affords constitutional status. I respectfully dissent” (Scalia J.dissenting).
Are there inconveniences in the U.S. process of justice? Absolutely! But nowhere does this mean that a process which causes the integrity of the courts to be called into question can be rationalized as equivalent to the proper carrying out of justice, let alone it being justified on the basis of Constitutional provision. Justice Scalia was clear in his reasoning that plea-bargaining was never even a thought in the minds of the Framers, and their writings shouldn’t be twisted to justify a process that was created more out of the desire for “convenient justice” rather than for the purpose of upholding the original intent of the Constitution for The United States court system. Advocates for the practice may try to make the argument that such practices don’t infringe on the autonomy of the defendants and likewise don’t necessarily grant systemic benefits to them they otherwise could not have had under the plea-bargaining system. Perhaps,but it is cases like Lafler point to the slippery nature of this system that could lead to dangerousConstitutional issues further along the line. Instead of upholding practices that aren’t direct violations of Constitutional law but bring forth numerous controversies, it is feasible to suggest that we start upholding practices that were created for the sole intention of upholding theConstitution.
In the logic of Justice Scalia, justice is not a game nor should it ever be treated like a game of leverage. It is the cardinal ethic upon which law and order is established, its true goal. If the legal system is more worried about finding loopholes in the Constitution in order to establish questionable processes to make litigation easier than about maintaining critical impartiality in defending the law for the purpose of protecting a defendant’s right to a trial by jury while subsequently granting them their just desserts for breaking the law, we will have ceased to become a stable society that mandates justice. Rather, we will have become a “kangaroo”establishment plagued with the faulty logic of the utilitarian archetype and justice within our framework will be displaced by the “winner-and-loser” system of litigation.
Bibliography
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Roberts, J. “Effective Plea Bargaining Counsel”. 122 Yale L.J. 2650 (2013). Retrieved fromhttp://www.yalelawjournal.org/essay/effective-plea...
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Lafler v. Cooper 566 U. S. 13 (2012) (Scalia J. dissenting)
