Ethics of Plea Bargaining - Term Paper Example

? Ethics of Plea Bargaining Plea Bargaining The plea bargaining system arose due to the increasing complexity, duration, and costof criminal trials, and it gained importance due to the increasing use of adversary procedures based on the law of evidence. However, the foundations of plea bargaining are a throwback to the adversarial system of justice, whereby the main function of the system trial is to identify the material truth and ascertaining which contesting party can offer a better case. Pleas are supposed to be tendered during trials not to be rewarded but to as part of the procedural system. Even though consent from prosecutor is needed, the prosecutor has no absolute authority to deny the defendant to make a deal. As the criminal justice seeks to develop the plea-bargaining system, this focus on the prosecutor discretionary powers, the victim, and the defendant is revisited. The system seems to be predominantly based on the offender and reprimand while forgetting the victim. The intention was for both parties to circumvent prolonged criminal trial and to permit the defendants to avoid risks arising from conviction during trial on other more grave charges. However, since the American jails and prisons are already overcrowded, the system should be reformed in order to conform to both moral and ethical functions of justice, and at the same tackle the overcrowding issue. In particular, there needs to be guidelines on the information that prosecutors should use, in order to avoid the current trend whereby prosecutors are conflicted in their resolution of what information needs to be divulged and the timing of such revelations. As such, codification, uniform rules, and increase in prosecutorial obligations will help to offer indispensable guidance and some sense of consistency, such that guilty pleas are based on the theory of knowing and intellectual waivers regarding right to trial. Ethical Concern The plea bargaining system arose due to the increasing complexity, duration, and cost of criminal trials, and it gained importance due to the increasing use of adversary procedures based on the law of evidence (Chambliss, 2011). However, the system, just like any other government policy, is liable to misuse and several ethical concerns. Firstly, the system involves regular contact between the prosecutor and the defendant’s team. This implies that the likelihood of replacing the official adversarial responsibilities with mutual relationships is high due to a lack of public openness (Williams & Arrigo, 2012). Secondly, the system pressure to give results inside the constraints of strictly limited resources, presents an ethical dilemma, of whether it is in the best interest for victims, defendants and the public to substitute the slow but deliberate jury practices with more speedy, closed-door and non-formal agreements (Lynch, 2003). Third, the ethical question arises whether it is right for defendants to be permitted to acquire ownership and liability for criminal conduct. Most notable, are the victims equal partners during negotiations and are their interests taken critically? Alternatively, is the system a form of bargain-based justice that lets the culpable off easily, and which in the end undermines the significance of deterrent as enforcement? As such, is it ethical to give the prosecutor an explicit stipulation to make the defendant to sign an agreement, which waives his or her right to dispute the plea agreement later, on the basis that it violated their sixth amendment right to be efficiently represented by a counsel? Discussion: Differing Perspectives History Evidence regarding the origin of plea-bargaining systems is ambiguous, but according to Fisher (2003) based on an asessment of court archives, the first plea bargains in America took place in Boston, Massachusetts. Fisher (2003) observes that between 1780 and early 1800, Middlesex County prosecutors came up with a structure whereby several charges related to liquor trading violations were to be dropped into a single charge, such that the defendant would plead no-contest or nolo contendere. The prosecutors could direct the whole process and judges were hardly involved. However, in 1840, a new version allowed the accused to plead guilty to a single count, but with the consideration that the judge would likely enforce previously established characteristic punishment for that particular crime (Fisher, 2003).  Later, the system transformed from criminal cases going to trial, towards unequivocal plea bargains, then to implied plea bargains, whereby the defendant would reasonably anticipate certain terms to be sections to be part of the agreement (Sandefur, 2003).  Even though in 1971, the Supreme Court affirmed the constitutionality of plea-bargaining in Santobello vs. New York, the judges warned that inducements that are considerably large or otherwise coercive with the goal of overruling the defendant’s capabilities to act liberally, can raise constitutional concerns and be prohibited (Sandefur, 2003). The Supreme Court also ruled that in case the incentives are applied in ways that creates a considerable number of guiltless individuals to pleading guilty, then the arrangement should be prohibited and raises constitutional issues. Policing, Courts and Corrections Perspective Critics of Plea bargaining are quick to point out several detracting factors. Firstly, informal negotiations may not be the most effective way of dealing with self-confessed defendants on an adversarial system. The regular contact between the prosecutors and the defense team only serves to undermine the adversarial roles with the rival and turn it into cooperative relations (Covey, 2009). Observing prosecutors as having clients instead of constituencies, the plea-bargain regime disregards the significance of the jury trial in decision-making process. This vague application of procedural fairness as a sufficient guidepost in seeking justice leaves questions regarding what can be applied as a standard on behalf of procedural fairness during the plea bargain process. The system seems to make the prosecutor focus on the interest of the client more than the community concerns in terms of deterrence and community safety (Lynch, 2003). In particular, the system fails to recognize that there can be an inadequate flow of information coming from the prosecutor’s office to the defense team, something that normally results in defendants believing that the prosecutor case is stronger than it is, something that normally forces them to confess or make a plea, even when not guilty (Kipnis, 1979). Critics’ also points out that this system accounts for the vast majority of all confessions of guilt, almost 90 percent of prosecutors’ criminal sentences (Fisher, 2003). This implies that defendants having comparable records and parallel offenses may be sentenced in vastly dissimilar punishments. However, such disparities are not reduced within the federal system because of uncombined effect of the national sentencing guidelines. Another argument worth noting relates to the fact that, plea bargain systems make it hard to follow procedural fairness, including prosecutors’ main ethical concerns, since the system allows both facts and legal conclusions to be bargained instead of being contested (Williams & Arrigo, 2012). The plea bargaining system does not recognize that a defense attorney may poorly advise the defendant, or offer insufficient representation because of factors like overwhelming caseloads, inadequate investigatory resources, and even the craving to exchange favor with the prosecutor in a hidden conflict of interest. As a result, it is hard for impartial facts to be applied to settle plea bargaining cases (Stephen & Fazio, 2008). However, Sandefur observes that although negotiations are conducted in a very informal manner, agreements should be written and taken to the presiding judge under an open court hearing for consistency approval. This ensures that all written assurances, recompense or inducements made to the defendants can be used in later disclosures (2003). With such contrasting views, this leads us to look at what other countries are using. Countries without Plea Bargaining Unlike the US, French and British plea agreement, Germany does not use the plea bargaining system and operate on a system of compulsory trial in a criminal process (Turner, 2009). In such a system, confessions are simply one of many types of evidence, and it contains no procedural functions to end or circumvent a trial. This is because the main function of the non-adversarial process trial is to identify the material truth, instead of ascertaining which contesting party can offer a better case. The judge and prosecutor operate through a formal negotiation system that is based on providing a confession, but only in exchange of a court ruling concession. Confessions or pleas are tendered during trials, which are not rewarded, but are part of the procedural system (Turner, 2009). Countries like Russia, Georgia, the former Yugoslavian states, and Croatia operate under a common law framework of abbreviated trials. These are shortened processes whereby judges review the evidence and the defendant’s confession before issuing the defendant a statutorily resolute abridged sentence. Abbreviated trials functions as an informal negotiation process, since some of these nations are prone to corruption and lack legitimacy in the judiciary. In such nations, the law does not offer for or necessitate compromises between the prosecutor and the defendants regarding the charge or the sentence (Alkon, 2009). Prosecutors Power and Discretion Proponents of Plea agreement argue that, in essence, it seeks to help the prosecutor attain maximum levels of deterrence, but at a lower cost to the government (Kipnis, 1979). In particular, they argue that plea bargaining is not based on deliberate partaking, since the defendant is not always willing to take the occasion and emotional vigor to sit with the victim and confer a resolution. In particular, since the discussions are closed door without inclusion of community, then plea bargaining system will not be constant. As such, is it ethical and morally proper for prosecutors to incorporate in the plea accords the waiver of the defendants’ statutory rights, right to appeal or the right to challenge asset forfeiture? Proponents point out that the plea-bargaining system results in fewer boundaries and reduced justifications for defendants to claim that prosecutors have applied unreasonable coercion. The unethical issue is that, prosecutors are increasingly safeguarding themselves from any future collateral assault by the defendants on the basis of violating their sixth amendment right for an effective counsel, by inserting sections stating that the defendants has in principle agreed not to launch any challenge to the agreement. Therefore, the prosecutors are seeking to attain maximum finality in their criminal process without observing the right of the defendants to challenge their decision (Lynch, 2003). Moreover, critics argue that the system places a lot of discretionary power on the prosecutor to decide the charges that the accused should face. Since prosecutors do have discretion regarding whether to provide a plea bargain, it should be noted that once the prosecutor signs a plea accord with the defendant, then the system does not present any opportunity for appeal at a future date. In that regard, the prosecutor possesses discretion on also whether to withdraw the offer, even after making it with the defendant (Covey, 2009). Another challenge that arises from the prosecutor’s discretionary powers is how the prosecutor should attain horizontal fairness, not only across timeframes, but also across cases (Smith, 2005). As such, the system presents inconsistencies regarding how the prosecutor might articulate differences that are pertinent and consequential, and to ignore those that are not. For instance, in cases involving multiple but consecutive sentences, the prosecutor has the sole discretionary power not just to decide what is the most serious offence to be imposed, but also what should be discarded. The major objective of the prosecutor in plea bargaining is to balance efficiency, fairness, independence, and transparency in order to offer approximate justice. However, the system gives the prosecutor discretionary powers to also threaten the defendant’s close relations unless he or she pleads culpable on certain terms. Such coercion methods presents an ethical challenge, such practice is laden with risks when not conducted carefully, and can go against an adversarial system and the prosecutor’s ethical principles. Moreover, since U.S. laws do not require the prosecutor to give the defendant full access to case materials, the defendant can easily be left uninformed regarding the real strength of the case to be presented by the prosecutor and their chances of success in trial (Lynch, 2003). Such restricted access provides the prosecutor the chance to apply extra charges or even to charge the defendants for untested offences, in order to use it as a coercion device or to make the defendant plea bargain to reduce charges that may still be as high as the charges for the actual crime committed. Under sentence enhancing statues, the prosecutor possesses discretionary powers in charging the defendant under these offences, which would automatically initiate the enhancement. This gives the prosecutors a strong advantage to coerce or even to pressure the defendant to agree on a deal that is fitting to the prosecutor. In particular, plea-sentencing guidelines provide prosecutors more powers to ask the defendant to have a longer sentence, even for crimes that the defendant was not convicted. Therefore, the prosecutor can then introduce even far more serious, although unproven, crimes during the sentencing stage in order to enhance punishment (Covey, 2009). The Effect on Accused Who Are Not Able To Pay Attorney Fees Many people who cannot afford to pay attorney fees go for plea-bargaining in order to save money. Many of those represented by private counsel seek to avoid hefty attorney fees by accepting a plea bargain (Bibas, 2012). Therefore, critics of the system point out that since financial concerns are central to the private defense team, the attorneys are automatically inclined to spend more effort and time on trials, which they stand to gain from more financially. Additionally, existing trends seem to show that attorneys focus more on plea bargains for wealthy clients and swiftly pass less financially able clients to public defenders. This has resulted in a torrent of cases facing public defenders, which puts even more pressure on them to move expeditiously. For this reason, poor people are exposed to trade-offs, as it is difficult to dispute the efficacy of any plea bargaining outcome (Williams & Arrigo, 2012). Furthermore, they tend to go for plea bargains since going to trial is not just expensive, but it takes more time and energy, which could be used to generate income (Lippke, 2006). In effect, those accused that cannot pay attorney fees plead guilty, such that they denounce their constitutional rights of not being forced to testify against themselves, or denouncing their right to scrutinize prosecutors and witnesses under their own cross-examination. Secondly, the system goes against their ethical right of hearing a case through a jury and not being able to refute illegally acquired evidence during the determination of guilt. Victims Plea bargaining does not guarantee that the prosecutor’s discretionary authority will always seek to give the victim justice. The victim is left with minimal or no course of action to influence the charging decision made by the prosecutor (Lynch, 2003). This leaves the leeway for prosecutors to not consider carefully his or her decision, and to base it on a defensible basis. Critics also point out that the agreed summary can remove or reduce the significance of factual components of a crime; something that could prevent the victim from not being fully informed regarding the real strength of the case (Williams & Arrigo, 2012). However, the victim has a right for judicial review when the prosecutor’s decision was based on evidentiary grounds. Additionally, a plea bargaining system makes the prosecutor to act as the state representation of clients, rather than acting as a multi-representative agent of the state for various constituencies concurrently (Williams & Arrigo, 2012). The system, due to long case logs, can make the prosecutor to discount one or more of the four prosecutorial interests of efficiency, fairness, self-sufficiency, and transparency. This shows that the victim cannot be guaranteed of absolute justice compared to going to a trial (Lippke, 2006). Analysis: Disadvantages Critics argue that since prosecutors are assessed based on the number of convictions they perform, the plea bargaining arrangement allows prosecutors to try all means to win convictions by overcharging or coercion, so that defendants will plead guilty (Williams & Arrigo, 2012). This form of coercion deprives most defendants in not only the procedural safeguards, but also the right to a full investigation through the trial process. In essence, the system brings out the unethical notion that prosecutors should focus more on reducing case logs, with the intention of saving the judicial system money and time, rather than equal treatment of cases. In addition, instead of stirring defense counsels to put in their finest efforts on behalf of the client, plea bargains overlook any ineffective assistance and this implies to attorneys that they need not be concerned about substandard performance as long as they can get a plea bargain. Additionally, the framework of the plea bargaining system forms a sort of a contest environment, which is something that ultimately restricts the capacity to efficiently examine practical applications of any new offences. Gaede, even argued that the act of confession has been changed into some sort of a cynical formal procedure, whereby morals and community interests are undermined for the sake of the criminally estranged people (2008). Analysis: Benefits First, the system enables the state to speedily effect punishments following admissions of responsibility. This ensures that the state is able to effectively achieve the goals of punishment (Sandefur, 2003). Furthermore, the state is able to save both legal and prosecutorial resources for other substantial cases. This makes it possible for jails and state prisons to avoid placing more strains on the already overcrowded jails, especially in states like California whereby the Supreme court even affirmed a ruling that they should reduce the overcrowding in state prisons . In terms of prosecution, plea-bargaining systems make the prosecutors work to be efficient, since pleas save money and time to take on criminals from the public domain (Stephen & Fazio, 2008). For the defendants, the system enables disposing of their cases before trial, saving costs arising from attorney fees. In particular, the system enables defendants who cannot afford private attorney fees to have expedited rulings with minimal effects on their jobs or wages (Sandefur, 2003). For judges, plea bargains minimize their caseloads, such that their works on trial cases are efficiently streamlined. This ensures that a clogged judicial system is able to function at a proper pace (Sandefur, 2003). Conclusion The current plea-bargaining structures do not observe the practical wisdom of ethical judgments. In other words, the system does not fully incorporate the understanding of salient aspects of each situation, nor the capacity to synthesize attentively the diversity of interests in the balance. It appears that the focus on reducing case logs overrides prosecutors’ main ethical roles of ensuring efficiency, fairness, independence, and transparency. Therefore, the plea bargain system should be improved by integrating more openness and visible justice, as increased transparency and inspection will increase public self-assurance in the process. Whether plea bargain are judged to be a sort of compromise, a contract, or as an efficient system, it must observe fundamental fairness, which calls for every defendant to be subjected to similar standards and handled in a steady manner. References Alkon, C. (2009). Plea bargaining as a legal transplant: a good idea for troubled criminal justice systems? (355, Ed.) Transnational Law & Contemporary Problems , 19 (2). Bibas, S. (2012). Incompetent plea bargaining and extrajudicial reforms. Stephanos Harvard Law Review, 126 (1), 150-404. Chambliss, W. J. (2011). Plea Bargaining Key Issues in Crime and Punishment: Courts, Law, and Justice (Vol. 3). NewYork: SAGE Publications, Inc. Covey, R. D. (2009). Signaling and plea bargaining's innocence problem. Washington and Lee Law Review , 66 (73), 73. Fisher, G. (2003). Plea Bargaining's Triumph: A History of Plea Bargaining in America. Stanford University Press. Gaede, K. (2008). Plea bargaining; defence rights. Journal of Criminal Law, 72 (2), 109. Kipnis, K. (1979). Plea bargaining: A critic's rejoinder. Law and Society Review, 13 (2), 555-564. Lippke, R. L. (2006). Retributivism and plea bargaining. Criminal Justice Ethics , 25 (2), 3-16. Lynch, T. (2003). The case against plea bargaining. 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