In earlier decades, guilty-plea defendants usually were expected to and did declare that no promises had been made to induce their pleas. Today the practice of plea negotiation is generally avowed, and the terms of individual plea agreements are often recorded when guilty pleas are accepted.
One common focus of reform efforts is the role of the trial judge. Some reformers advocate substantially less judicial involvement in plea negotiations; others, substantially more. Some reformers also hope to limit the extent of the sentence differential between defendants who plead guilty and those who exercise the right to trial.
Some prosecutors' offices have formulated internal guidelines to regulate plea negotiation and other forms of discretionary decisionmaking. These guidelines have been designed both to reduce discretion and to afford office administrators greater control over their subordinates.
Nevertheless, the variables that influence plea negotiation are so numerous and so complex that it is difficult to reduce them to a formula. In some jurisdictions , prosecutors and defendants can work with judges to predetermine what sentence the defendants will get if the defendants accept plea bargains. Similarly, federal judges may not be directly involved in plea bargain negotiations.
Although plea bargaining allows the criminal justice system to conserve resources, the plea bargains are controversial. Some commentators oppose plea bargains, as they feel that plea bargains allow defendants to shirk responsibility for the crimes they have committed. Others argue that plea bargains are too coercive and undermine important constitutional rights. Plea bargaining does require defendants to waive three rights protected by the Fifth and Sixth Amendments : the right to a jury trial , the right against self-incrimination , and the right to confront witnesses.
The Supreme Court , however, in numerous cases such as Brady v. United States , U. McCarthy v. The alternative to improved pleas is more trials. A half-step in this direction has long been practiced in Philadelphia, where bench trials—before a judge but no jury—are common. In , excluding cases that were dismissed, only 72 percent of criminal defendants in Philadelphia pled guilty, as opposed to 97 percent federally; 15 percent pursued a bench trial.
This program allows for far more trials than we see in other jurisdictions. John Rappaport, a law professor at the University of Chicago, proposes a more radical idea : If pretrial bargaining with the prosecutor is going to take place, it should embrace more than the basic exchange of guilt for leniency. Defendants should be able to bargain across the trial process itself, offering simplicity in exchange for a lesser charge.
What if a defendant agreed to a trial before six or three jurors, instead of 12? Or what if the standards of evidence were downgraded, from beyond a reasonable doubt to a preponderance of the evidence?
He suggests that reforming the plea system to incorporate more trials would expose other problem areas. In this regard, even a heavily pruned trial is favorable to no trial at all.
And such a bargaining process would not exist without limits. A defendant could not agree to a coin flip, for example, as the determinant of guilt.
It is the daily bread of every criminal court in every jurisdiction in the country, and virtually all in service to economics. He reached for a metaphor that he first used almost a quarter-century ago, in an article that sought alternatives to plea deals.
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