NCJ Number
45587
Journal
Criminal Law Bulletin Volume: 14 Issue: 2 Dated: (MARCH/APRIL 1978) Pages: 101-122
Date Published
1978
Length
22 pages
Annotation
FORCES BEHIND THE MOVEMENT TO ABOLISH PLEA BARGAINING ARE EXAMINED, ATTEMPTS TO RESTRICT PLEA BARGAINING IN FOUR JURISDICTIONS ARE REVIEWED, AND A PLAN TO REPLACE PLEA BARGAINING WITH CHARGE-SETTING HEARINGS IS PROPOSED.
Abstract
SERIOUS CONSTITUTIONAL QUESTIONS SURROUND THE PRACTICE OF PLEA BARGAINING. THE CRUCIAL QUESTION IS THIS: HOW CAN A DEMOCRATIC SYSTEM OF GOVERNMENT CONDONE A PROCESS WHEREBY PEOPLE WHO CHOOSE TO EXERCISE THEIR CONSTITUTIONAL RIGHT REMAIN CHARGED WITH CRIMINAL CONDUCT BEARING GREATER POTENTIAL PUNISHMENT THAN THE LESSER CHARGES THEY WOULD BE OFFERED WERE THEY TO FOREGO THE EXERCISE OF THEIR CONSTITUTIONAL RIGHTS? MAJOR IMPETUS FOR THE ABOLITION OF PLEA BARGAINING CAME FROM THE NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS, WHICH CALLED FOR AN END TO THE PRACTICE BY 1978. A REVIEW OF STEPS TAKEN TO RESTRICT PLEA BARGAINING IN THE U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF CALIFORNIA, THE STATE OF ALASKA, MULTNOMAH COUNTY, ORE., AND MARICOPA COUNTY, ARIZ., OFFERS EVIDENCE AGAINST CLAIMS THAT, WITHOUT PLEA BARGAINING, THE CRIMINAL JUSTICE SYSTEM WILL TOPPLE UNDER ITS OWN WEIGHT. IDEALLY, THE APPROPRIATE CHARGE IN EACH CASE MUST BE SOUGHT AS EARLY AS POSSIBLE. ONCE THE APPROPRIATE CHARGE IS DETERMINED, THE PROSECUTOR SHOULD NOT SEEK TO REDUCE IT SOLELY TO OBTAIN A PLEA OF GUILTY. IF THE APPROPRIATENESS OF THE CHARGE IS THE KEY TO A SYSTEM FREE OF PLEA AND SENTENCE BARGAINING, THERE MUST BE A CONTROL ON THAT KEY BEYOND THE PROSECUTOR'S GOOD FAITH AND ADHERENCE TO ESTABLISHED CRITERIA. THAT KEY COULD BE PROVIDED IN A CHARGE-SETTING HEARING, IN WHICH THE COURT, HAVING CONSIDERED ALL INFORMATION PRESENTED TO IT BY COURT PERSONNEL, THE DEFENSE, AND THE PROSECUTION, SELECTS THE APPROPRIATE CHARGE. (LKM)