NCJ Number
64632
Journal
American Journal of Criminal Law Volume: 7 Issue: 3 Dated: (NOVEMBER 1979) Pages: 323-353
Date Published
1979
Length
31 pages
Annotation
CRITICISMS OF PLEA BARGAINING ARE ANALYTICALLY EXAMINED, WITH REFERENCE TO INHERENT AND PROCEDURAL PROBLEMS AND THE COMBINATION OF TWO MODELS TO ISOLATE THE IMPACT OF THE PLEA BARGAINING ON INDIVIDUAL DEFENDANTS.
Abstract
PLEA BARGAINING HAS BEEN CRITICIZED BECAUSE IT GIVES GUILTY DEFENDANTS AN IMPROVED CHANCE TO RECEIVE A LOWER SENTENCE THAN THEY WOULD RECEIVE IF CONVICTED AT TRIAL. IT ALSO PLACES ADDED PRESSURES ON INNOCENT DEFENDANTS TO PLEAD GUILTY, AND IT CAN ELIMINATE THE DEFENDANT'S CONSTITUTIONAL RIGHTS OF CONFRONTING AND CROSS-EXAMINING PROSECUTION WITNESSES, PRESENTING DEFENSE WITNESSES, AND EXCERCISING THE RIGHT AGAINST SELF-INCRIMINATION. FURTHER, PLEA BARGAINING IS INHERENTLY UNFAIR TO ALL DEFENDANTS, INNOCENT AND GUILTY, BECAUSE THE PROSECUTOR IS IN A BETTER AND MORE POWERFUL POSITION DURING NEGOTIATIONS THAN THE AVERAGE DEFENDANT. PLEA BARGAINING LACKS A ROLE FOR THE JUDGE IN NEGOTIATIONS BETWEEN PROSECUTOR AND DEFENDANT; LEAVES DISCUSSION TO THE AREAS OF CHARGE DISMISSAL, CHARGE REDUCTION, AND SENTENCE RECOMMENDATION; REPRESENTS A FAILURE OF THE CRIMINAL JUSTICE SYSTEM TO RECOGNIZE PLEA BARGAINING OPENLY AND TO PROPOSE DEFINITE STANDARDS; AND MAY RESULT IN A CONFLICT OF INTEREST BETWEEN INDIGENT DEFENDANTS AND THEIR COURT-APPOINTED PUBLIC DEFENDERS. LANDES HAS DEVELOPED A MODEL TO PREDICT WHETHER THE POSSIBILITY OF AN ACCEPTABLE PLEA BARGAIN EXISTS IN A GIVEN SITUATION. THE BASIC ASSUMPTION OF THIS MODEL IS THAT BOTH PROSECUTOR AND DEFENDANT WISH TO MAXIMIZE THEIR UTILITY. ACCORDING TO LANDES, THE UTILITY OF EACH PARTY AND ASSOCIATED ACTIONS ARE A FUNCTION OF AVAILABLE RESOURCES, ESTIMATION OF COSTS AND PROBABLE TRIAL OUTCOME, COSTS OF PLEA BARGAINING, AND SEVERITY OF CRIME. NASH OFFERS A UNIQUE SOLUTION TO THE PLEA BARGAINING SITUATION IN WHICH BOTH SIDES PREFER TO REACH ANY AGREEMENT WITHIN A CERTAIN RANGE OF ALTERNATIVES RATHER THAN NO AGREEMENT AT ALL BUT IN WHICH EACH SIDE HAS DIAMETRICALLY OPPOSED PREFERENCES WITHIN THAT RANGE. BY APPLYING THE NASH SOLUTION TO THE LANDES MODEL, IT IS SHOWN THAT PLEA BARGAINING RESULTS FROM A COMBINATION OF TWO FACTORS, UNCERTAINTY AT TRIAL AND RESOURCE EXPENDITURES. AS LONG AS THE TRIAL OUTCOME REMAINS UNCERTAIN, THERE WILL BE AN INCENTIVE FOR EACH SIDE TO BARGAIN REGARDLESS OF AVAILABLE RESOURCES. AT ANY RESOURCE LEVEL, THE PROSECUTOR WILL BE BETTER ABLE TO MAXIMIZE HIS OR HER OBJECTIVE FUNCTION IN A PLEA BARGAINING SYSTEM THAN IN A PURE TRIAL SYSTEM. CASE LAW IS REVIEWED. (DEP)