Chapter Thirteen: Negotiated Justice and the Plea of Guilty

Law on the Books: Types of Pleas Charge Bargaining Defendant pleads guilty in return for a less serious charge Count Bargaining Defendant pleads to some of the original counts charged and prosecutor dismisses the rest Sentence bargaining Defendant pleads to the original charge in exchange for a promise of leniency in sentencing Caseloads Differences among jurisdictions in the ratio of pleas to trials primarily reflect differences in the prosecution and the police, not in crime rates or court resources

Law in Action: Factors Influencing Bargaining and Discretion Presumption of factual guilt Most legally innocent defendants are removed in earlier screening processes Preliminary hearing, Grand jury, Prosecutor’s charging decision Costs and risks of trial All members of the courtroom workgroup have a common interest in disposing of cases and avoiding unnecessary trials What to do with the guilty Sentencing decisions Members of the courtroom workgroup seek to individualize justice

Bargaining and the Courtroom Workgroup Prosecutor Certainty of conviction Control the negotiating process Defendants Possibility of a lenient sentence Immediate release

Bargaining and the Courtroom Workgroup Defense Attorneys Assesses the offer Negotiates the terms of the plea bargain Counsels the defendant Judges Pressure attorneys to accept pleas Attorneys know the “going rate” a judge will accept in a plea bargain for each charge

Dynamics of Bargaining Decision-making norms Shared conceptions of how specific types of cases and defendants should be treated Seriousness of the offense Defendant’s criminal record Strength of prosecutor’s case

Dynamics of Bargaining Why Cases Go To Trial Parties cannot settle through negotiation Defense attorneys recommend a trial when risks are low and possible gains are high Defendants demand a trial Some types of cases more likely to go to trial Homicide Sexual assault Robbery

Dynamics of Bargaining Jury Trial Penalty Difficult to draw conclusions because of tremendous discrepancies among jurisdictions Three strikes statutes allow prosecutors to threaten very long sentences

Copping a Plea Questioning the Defendant Nolo Contendere Latin phrase meaning “I will not contest it” Has the same impact as a guilty plea but can not be used in civil proceedings Boykin v. Alabama (1969) A “Boykin” form is required to accept a guilty plea ensuring it is voluntary

Copping a Plea Accepting a Plea Alford Plea Alford v. North Carolina (1971) Defendant “saves face” Same effect as a guilty plea Alford pleas are accepted in some cases, allowing the defendant to plead guilty but at the same time not acknowledge his guilt on the record (death penalty cases where the defendant wants to avoid death but contends he/she is innocent).

Opposition to Plea Bargaining Due Process Model Undercuts protections afforded individuals May lead to conviction of innocent defendants Produces few tangible benefits for defendants Crime Control Model Allows defendants to avoid conviction for crimes they actually committed Results in lenient sentences Gives criminal wrongdoers the impression that the courts and the law are easily manipulated