NCJ Number
14624
Date Published
1967
Length
12 pages
Annotation
DESCRIPTION OF THE NEGOTIATED PLEA, A DISCUSSION OF ADMINISTRATIVE CONSIDERATIONS, AND THE VARIOUS LEGAL ISSUES ASSOCIATED WITH THE PRACTICE.
Abstract
THE AUTHOR OUTLINES THREE COMMON MOTIVES FOR BARGAINING HELD BY DEFENDANTS - (1) THEY SEEK LESS SERIOUS OR FEWER CHARGES THAN ORIGINALLY PRESENTED IN RETURN FOR THEIR GUILTY PLEA, (2) THEY MAY OFFER TO PLEAD GUILTY TO A CERTAIN OFFENSE TO MAXIMIZE JUDGE SENTENCING DISCRETION, WHERE A MANDATORY SENTENCE WOULD ACCOMPANY CONVICTION ON THE ORGINIAL COUNTS, (3) THE DEFENDANT MAY DESIRE TO PLEAD GUILTY TO AN ALTERNATIVE OFFENSE WHEN A CONVICTION ON THE ORIGINAL CHARGE WOULD BE ACCOMPANIED BY UNDESIRABLE, REPUGNANT COLLATERAL ASPECTS, AS IN SEX CRIMES. THESE CHANGES IN THE CONVICTION LABEL RAISE SERIOUS PROBLEMS FOR THE CRIMINAL JUSTICE SYSTEM. PROCEDURALLY, 'BACK ROOM' DISCUSSIONS AND BARGAIN SESSIONS LEAVE NO RECORD, COMPLICATING THE JOB OF CORRECTIONAL AUTHORITIES AND OTHERS WHO ENTER THE PROCESS AT LATER STAGES. MOREOVER, PROSECUTORS DEFENDANTS MAY REPRESENT ONLY THEIR NARROW SELF-INTERESTS THE PROSECUTOR'S DESIRE FOR A CONVICTION AND THE DEFENDANT'S DESIRE TO GET OFF WITH AS LITTLE AS POSSIBLE. CONSEQUENTLY, THE PUBLIC INTEREST IS LEFT UNPROTECTED. THE SYSTEM BEARS A RISK, TO AN UNKNOWN EXTENT, THAT INNOCENT DEFENDANTS MAY PLEAD GUILTY, THAT NEGOTIATIONS REVOLVING AROUND 'HOW MANY YEARS A PLEA IS WORTH' MAY SUBVERT ANY REHABILITATIVE SENTENCING GOALS, THAT FACTUAL INFORMATION RELATING TO THE INDIVIDUAL CHARACTERISTICS AND NEEDS OF A PARTICULAR DEFENDANT WILL NEVER BE DEVELOPED, AND THAT A FEELING THAT A SENSE OF PURPOSELESSNESS AND LACK OF CONTROL MAY PERVADE THE ENTIRE SYSTEM. PLEA BARGAINING DOES SERVE NUMEROUS USEFUL ENDS- ADMINISTRATIVE BURDENS ARE EASED. TRIALS BECOME MORE MEANINGFUL FOR THOSE DEFENDANTS WHOSE CASES CONTAIN REAL DISPUTES OR SERIOUS LEGAL ISSUES AND WHO LITIGATE THESE QUESTIONS AT TRIAL. BARGAINING FURNISHES A MEANS TO MITIGATE THE HARSHNESS OF A SYSTEM THAT HARBORS OCCASIONAL INEQUITIES. IT AFFORDS THE DEFENDANT SOME PARTICIPATION IN AND CONTROL OVER THE PROCESS OF HIS ADJUDICATION AND SENTENCING. THE AUTHOR COUNTERS SEVERAL OFTEN HEARD CRITICISMS OF THE PRACTICE OF BARGAINING. HE CONTENDS THAT THE RISK THAT INNOCENT DEFENDANTS WILL PLEAD GUILTY, WHILE OF OBVIOUS CONCERN, IS COMPARABLE TO THE ANXIETY THAT ACCOMPANIES TRIALS, WHICH DO NOT ALWAYS RESULT IN TRUTHFUL OR ACCURATE VERDICTS. IN SOME RESPECTS, ADJUDICATION BY BARGAINING MAY BE MORE RATIONAL THAN BY TRIAL- A JURY IS OFTEN LEFT WITH THE EXTREME ALTERNATIVES OF GUILT OR INNOCENCE, WITH NO ROOM FOR INTERMEDIATE JUDGEMENT. BARGAINING, HOWEVER, LEAVES BOTH PROSECUTION AND DEFENSE WITH OTHER VIABLE OPTIONS. A MAJOR CRITICISM OF PLEA BARGAINING IS ITS LACK OF VISIBILITY. PROFESSOR ENKER ARGUES THAT WHILE THE PROCESS IS INDEED LESS VISIBLE TO THE PUBLIC AND LAW PROFESSORS, IT IS MORE VISIBLE TO THE PARTIES MOST DIRECTLY INVOLVED AND EFFECTED - THE DEFENDANT AND DEFENSE COUNSEL, WHO ARE ABLE TO PARTICIPATE IN BOTH THE ADJUDICATION AND SENTENCING PHASES. THE BARGAIN, CONSEQUENTLY, MAY BE LOOKED AT AS AN ATTEMPT BY THE DEFENDANT TO PRESERVE HIS DIGNITY BY FINDING A ROLE FOR HIMSELF EVEN IF IT MEANS A SENTENCE BASED ON PENOLOGICALLY IRRELEVANT CRITERIA. ON THE ISSUE VOLUNTARINESS, SIMIALR NOTIONS OF DIGNITY SEEM TO REQUIRE THAT THE DEFENDANT BE ALLOWED TO JUDGE AND ACT INTELLIGENTLY IN HIS OWN SELF INTEREST, WITH ADJUDICATION BY TRIAL VIEWED AS AN AVAILABLE, RATHER THAN A PREFERRED OR DESIRED PROCEDURE. THE PRACTICE IS RIPE FOR REVISION AND REFORM. THE AUTHOR SUGGESTS THAT THREE KEY AREAS SHOULD BE EXPLORED BY ANY EXAMINATION EARLY DEVELOPMENT AND AGREEMENT ON FACTS BY THE PROSECUTION AND THE DEFENSE, FREE EXCHANGE OF IDEAS, AND EARLY PARTICIPATION IN THE PROCESS BY THE JUDGE. ALL THREE, HE CONTENDS, COULD BE ACCOMPLISHED BY A 'PRE-PLEA' CONFERENCE. ONE POSSIBLE PROCEDURE MIGHT BE TO CALL SUCH A CONFERENCE AFTER AN AGREEMENT HAS BEEN REACHED. WHERE WHERE THERE IS DISAGREEMENT, THERE SHOULD BE COMPARABLE OPPORTUNITY, PERHAPS ONLY AT THE DEFENDANT'S OPTION, TO ARGUE AND CONFER WITH A JUDGE. IN LIGHT OF THESE CONSIDERATIONS, INCLUDING THE BENEFITS TO BOTH THE SYSTEM AND TO DEFENDANTS THAT CAN BE DERIVED FROM A CONTROLLED SYSTEM OF PLEA NEGOTIATIONS, THE AUTHOR CONTENDS THAT IT WOULD NOT BE DESIRABLE TO LAY DOWN A BROAD CONSTITUTIONAL DICTUM FORBIDDING THE PRACTICE. IT WOULD BE A MISTAKE TO PUSH VALID LEGAL OR CONSTITUTIONAL INSIGHTS TO THE ULTIMATE OF THEIR LOGIC. ACCOMODATION OF CONFLICTING INTERESTS IS A MORE SENSIBLE PURSUIT.