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July 15, 2003
Debating the pros and cons of plea bargaining

By Gary Blankenship
Senior Editor

Is plea bargaining justice for sale, offering disparate sentences for similar offenses depending on whether a defendant exercises his or her right for trial? Or is it a normal byproduct of criminal litigation where even without caseload pressures most charges would end in pleas?

The pros and cons of plea bargaining, and a historical look at the practice, were the topics of the first annual Professor Gerald T. Bennett Summit on Criminal Justice Issues, held by the Criminal Law Section at its June 27 luncheon during the Bar’s Annual Meeting.

Section Chair Melanie Hines said the program honors the memory of longtime section member Bennett “who came up with the idea we ought not to just review rules and procedures, we ought to challenge those rules and procedures and see why they were adopted in the first place.”

The section jumped in with both feet with its plea bargaining seminar, which produced a lively discussion and lots of questions from the audience.

Albert Alschuler, the Julius Kreeger Professor of Law and Criminology at the University of Chicago Law School, led off by questioning the underpinnings of plea bargaining.

He quoted a former Chicago lawyer (who went on to become a Utah Supreme Court justice) who represented an indigent charged with selling drugs. The law called for a 10-year sentence, but prosecutors offered two years as part of a plea bargain. But then the judge weighed in and advised the defendant if he went to trial and lost, the sentence would be 20 years.

As the judge explained, “He takes some of my time [in the trial] and I take some of his. That’s the way it works,’” Alschuler said. “I think that is the way it works in the American criminal justice system. . . . A choice between a guilty plea and trial affects his sentence more than his prior criminal record.”

The rationale adopted by the U.S. Supreme Court in Brady v. U.S. in 1970 also gives pause, he said.

The court said it was okay to offer a lesser penalty in a plea because the state saved resources by not having a trial. That leaves the impression, he noted, that “The defendant should be penalized for standing trial, but he should be rewarded for saving the court time.”

Alschuler said that can lead to interesting speculations. For example, if the defendant offers to pay all the trial costs, and maybe a little profit besides, should he or she then qualify for a lighter sentence?

If that seems farfetched, he noted a case in Ft. Lauderdale where two defendants, facing charges for trying to buy a large amount of marijuana, were given probation after they agreed to pay $260,000 to the police department.

When boxer Mike Tyson faced criminal charges, Donald Trump proposed instead of sending him to jail, allowing him to box and sharing his purses with his victims. However, Alschuler said, the New Jersey Attorney General, where that case was pending, announced that justice was not for sale.

Not all reasons for plea bargaining are economic. Judges want to move cases, prosecutors seek a high conviction rate, public defenders desire relief from crushing caseloads, and private defense counsel may have an economic incentive if their fee is the same whether the defendant pleads or goes to trial. And another weakness is “people don’t want to talk about plea bargaining and how it affects people who would be exonerated at trial,” Alschuler said.

His solution is not to devote more resources to the criminal justice system, but to make the complex trial system simpler so more trials can be held.

Martin Heumann, chair of the Rutgers University Political Science Department, disputed Alschuler’s contentions.

“First and foremost, plea bargaining is not a function of case pressure. This is a huge myth that continues to bedevil analyses,” he said. If courts had unlimited resources to hold trials, 70 to 80 percent of all cases would still end up with pleas, he said.

Nor is it clear that plea bargaining means an easier sentence for defendants.

“It’s not necessarily so that there is a penalty for trial. The data is not clear,” Heumann said. “Cases are different that go to trial than those that plea.”

Many programs aimed as circumventing plea bargains wind up having the functional equivalent of pleas, he said. Heumann also downplayed criticisms that defendants see plea bargaining as unfair.

Studies, he said, suggest inmates view it as a game. “If you study defendants’ perceptions, most of them want to plea,” he added. “While there’s much rhetoric about being railroaded into a plea, they don’t want to try again.”

Other observations, he said, include that plea practices vary greatly around the country and that sentencing guidelines and other changes have switched discretion from judges to prosecutors, who can determine sentence severity by how they charge a case.

But plea bargaining remains an essential part of the system and essential to handling the huge crush of cases. Heumann quoted one prosecutor who was criticized for plea bargaining as saying “that’s like accusing me of sleeping with my wife.”

Miami attorney Scott Fingerhut presented facts and background on plea bargaining, noting it has been around for hundreds of years. After all, he noted, the English offered Joan of Arc a deal: Recant that she heard God command her to lead the French and they would not burn her at the stake.

How common is plea bargaining? Fingerhut reported in the past two years, there have been 42,000 felony charges filed in Miami-Dade County. In the same period, there have been 330 felony trials (not counting DUI and other minor cases). There are 20 judges assigned to the felony division, he said, and if they did two trials a week, they could not begin to deal with that number of filings, without the help of plea bargaining.

The justice system is far different, Fingerhut said, than when the framers drew up the Constitution. Then, jury trials were the norm and pleas were rare. Now trials are the rarity, and it’s impossible to tell how the courts are functioning by looking only at trials.

“What changed was not the Bill of Rights or the Constitution. What changed were the times, how we perceive ourselves and our lives,” he said. “Over the course of time, where Europe evolved to a [judicial] inquisitorial system, America went to an adversarial model.”

Plea bargaining also is providing flexibility in a system where judges are losing discretion to minimum mandatory sentencing laws and other changes.

“Getting rid of plea bargaining in an environment where judges have less and less discretion is scary,” Fingerhut said.

Florida law, he said, has evolved where judges have little if any participation in plea bargaining. Even if judges offer “gentle wisdom” to a defendant about a plea bargain, that can be grounds for a reversal.

Mandatory sentences were a concern of some audience members, and the first question dealt with the apparent incompatibility of guidelines and plea bargains.

Alschuler agreed, saying federal sentencing guidelines are the best argument he knows for plea bargaining.

He also questioned the rationale, saying guidelines were intended to reduce the discretion of judges, but have had the effect of increasing the discretion of prosecutors, who have a vested interest in the case.

Fingerhut noted that guidelines were begun as a way to guarantee uniformity in sentencing, but now are used as a way to increase punishment.

[Revised: 10-01-2014]