Plea Bargaining Pleading for Justice Plea Bargaining

Plea Bargaining

Pleading for Justice

Plea bargaining by its very nature implies negotiation, which in turn means that two or more parties are seeking to achieve specific goals with the cooperation of the other parties. In the absence of plea bargaining the parties would face each other in court as adversaries in front of a referee and their conduct and the trial's proceedings would be strictly controlled according to the law and judicial precedence. In contrast, plea bargaining allows the parties to be more creative when seeking their goals, but without the trappings and constitutional safety nets that a trial provides (Bowers, 2007). Plea bargaining is therefore a less formal legal proceeding that nevertheless determines the fate of the accused with respect to criminal convictions, sentencing, and fines.

The parties with a vested interest in the outcome of a criminal plea bargain are the police, accused, prosecutor, judge, and hopefully a defense attorney or public defender (Bowers, 2007). As Josh Bowers notes, past practices defines what will occur during plea bargaining and the law tends to take a backseat. This type of proceeding is therefore susceptible to individual preferences, political agendas, and institutional pressures, with the most power in the hands of police and prosecutors. A jury or bench trial, by contrast, tends to compensate for this imbalance in power by acting as a referee between the two adversaries.

If plea bargaining rarely occurred there would be little cause for concern, but 97% of all federal convictions in 2009 were the result of a plea deal (Gray, Cooper, and McAloon, 2012). This essay will examine the controversies surrounding plea bargaining and how it could be serving or subverting the goals of justice.

Political Influence

Bowers (2007) examines a phenomenon that he calls 'grassroots' plea bargaining. What this term implies is prosecutors seeking to institute a policy agenda by altering how they handle plea bargains. The example given by Bowers involves prosecutors compensating for aggressive policing techniques in low-income, high-crime neighborhoods through the use of lenient plea deals. Aggressive policing tends to capture the children and spouses of residents in its dragnet, but higher arrests rates also risks alienating local support for aggressive policing tactics. Instituting a policy of more lenient plea deals is one way policymakers can attempt to appease residents.

On the surface, the use of more lenient plea deals to appease residents seems to be a humane response to aggressive policing of crime-ridden neighborhoods, but Bowers (2007) notes that the information gathered during the booking process generates a database that can be used by the police to keep tabs on the residents. What the residents are unwittingly losing is their privacy as a police state is formed in their neighborhood; a police state made possible in part by a promise of lenient plea deals.

The Currency of Plea Bargaining

The accused and prosecutors during plea bargaining are seeking specific goals. The accused is seeking to reduce the criminal charge, probation in lieu of prison time, or a reduced sentence, while the prosecutor is trying to lower their own case loads, close police investigations, reduce court costs, and create a public reputation of prosecutorial efficiency (Bowers, 2007). Plea bargaining also eliminates the costs of a trial for both the defendant and the state.

Talia Fisher (2007) refers to these different goals as 'bargaining chips' that can be used by each party to achieve their ends. For example, the accused can choose to relinquish their constitutional rights to self-incrimination, a jury trial, and the appellate process in exchange for reduction of a felony conviction to a misdemeanor, reduced sentence, or probation in lieu of jail time. Fisher describes the plea bargaining process as conferring to the accused a significant amount of autonomy, but the threat of spending the pre-trial period in jail can only be viewed as coercive.

Fisher (2007) then goes on to argue for adding another bargaining chip to the defendant's arsenal. This chip would be agreeing to a reduction in the standard of proof required for a criminal trial in exchange for concessions by the prosecution. Gray and colleagues (2012) would argue, however, that the standard of proof is already significantly reduced by the Silver Platter Doctrine instituted by the U.S. Supreme Court in United States vs. Calandra (1974). Of particular concern is the use of evidence obtained in violation of Fourth Amendment protections against unlawful searches and seizures during grand jury hearings. An indictment or the threat of an indictment allows prosecutors to effectively use illegally-obtained evidence during plea bargains. Gray and colleagues went further and claimed that the Silver Platter Doctrine actually encourages the police to perform illegal searches and seizures and prosecutors to use this evidence during pretrial proceedings. In light of this argument it seems a bit far-fetched that defendants are enjoying considerable autonomy given the imbalance of power conferred to police and prosecutors by the Supreme Court through the Silver Platter Doctrine.

The Human Side of Self-Incrimination

Researchers have discovered that innocent people are susceptible to making false confessions, even when faced with long prison terms (Kassin, 2012). Innocent people tend to be more cooperative with police investigators and prosecutors than the guilty and will often wave their Miranda rights, provide alibis in the mistaken belief that they are helping the police to refocus their efforts elsewhere, and will withstand coercive interrogations under the misperception that a trial will unerringly ferret out the truth of their innocence. In other words, innocent suspects tend to assume the criminal justice system is fair and that police and prosecutors are merely trying to discover the truth.

Saul Kassin (2012) discussed a growing body of research revealing that innocent people will confess to a crime or transgression when confronted with statements concerning the processing of evidence that may confirm their guilt. This is a common interrogation tactic used by police and prosecutors, under the assumption that the innocent will remain resistant such manipulations. Should a false confession be made, the police and prosecutors are equally guilty of assuming the case is closed despite inaccuracies and inconsistencies in the confession. This was shown to be true when 25% of DNA exonerations in the 1990s were found to involve a false confession. Many of those who were exonerated were sitting on death row.