Plea bargaining, justice, and the power imbalance in criminal proceedings

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.

Conclusions

Plea bargaining offers the promise of prosecutorial efficiency, reduced cost, and shorter prison sentences, but the reality is that this legal process is susceptible to personal and political agendas and can be used to subvert constitutional protections for the accused. With the vast majority of convictions obtained through the plea bargaining process it seems safe to conclude that plea bargaining represents the primary criminal justice system in the U.S. As Bowers (2007) states "… criminal law exists in the shadow of plea bargaining -- not the other way around" (86-87). Given that the fate of so many citizens depends on how plea bargaining is conducted, it seems that much more attention should be paid to this area of the criminal justice system by everyone, especially the public and their political representatives. Doing so should help reduce the number of innocents sitting in the nation's jails and prisons.