NCJ Number
55434
Journal
American Journal of Criminal Law Volume: 5 Issue: 2 Dated: (MARCH 1977) Pages: 215-224
Date Published
1977
Length
10 pages
Annotation
THE USE OF DISCRETION IN THE CRIMINAL JUSTICE SYSTEM IS EVALUATED, WITH EMPHASIS ON THE HANDLING OF GUILTY PLEAS MADE BY CRIMINALS AND THE PLEA BARGAINING PROCESS.
Abstract
TWO ATTITUDES ABOUT CRIME CAUSES ARE NOT SUPPORTED: (1) THE CRIMINAL JUSTICE SYSTEM SHOULD BE IGNORED BECAUSE IT HAS NO INFLUENCE ON CRIME, AND (2) IMPROVING THE CRIMINAL JUSTICE SYSTEM WILL HAVE A MAJOR EFFECT ON CRIME. IMPORTANT INFLUENCES ON CRIME, OTHER THAN THE CRIMINAL JUSTICE SYSTEM, ARE POVERTY, SLUMS, RACISM, FAMILY BREAKDOWN, AND INEQUALITY. DETERRENCE AND ISOLATION ARE NOT EFFECTIVE IN CRIME CONTROL, EXCEPT WHERE EXORBITANT RESOURCES ARE EXPENDED. THE PROBLEM IS THAT THERE ARE TOO MANY CRIMINALS. PLEAS MADE BY CRIMINALS ARE GENERALLY THE RESULT OF BARGAINING. THE PLEA BARGAINING SYSTEM IS A CONSTANT SOURCE OF INJUSTICE. IT CAUSES SOME DEFENDANTS TO PLEAD GUILTY WHEN THEY ARE NOT GUILTY, PITS THE DEFENSE AGAINST THE CLIENT IN WHAT CRIMINOLOGISTS CALL A CONFIDENCE GAME, CAUSES PROSECUTORS TO OVERCHARGE DEFENDANTS SO THAT A PLEA CAN BE MADE FOR THE OFFENSE PROBABLY COMMITTED, FORCES PROSECUTORS TO LOBBY CONSTANTLY IN LEGISLATURES FOR HIGHER SENTENCES, PREVENTS RATIONALITY IN SENTENCING SINCE JUDGES ARE RESTRAINED BY THE PLEA BARGAIN, AND OFTEN ALLOWS CRIMINALS TO EVADE RESPONSIBILITY FOR THEIR ACTS. TWO MOVEMENTS ARE PARTICULARLY NOTEWORTHY WITH REGARD TO AMELIORATING PROBLEMS INHERENT IN PLEA BARGAINING: (1) ATTEMPTS TO DECRIMINALIZE VICTIMLESS CRIMES AND (2) CREATION OF A DIVERSION SYSTEM. THE PROBLEM WITH DIVERSION, HOWEVER, IS THAT IT EXTENDS FURTHER DISCRETION TO PROSECUTORS. ALTERNATIVES SUCH AS ELIMINATING THE PLEA NEGOTIATION PROCESS AND THE EXCLUSIONARY RULE AND DEVOTING MORE RESOURCES TO THE PROBLEM OF CRIME ARE LIKEWISE NOT FEASIBLE OR COST-EFFECTIVE. IT IS PROPOSED THAT A GUILTY PLEA BE CONSIDERED AS A MITIGATING FACTOR IN A FLAT-TIME SENTENCE SCHEME. AS A FIRST APPROXIMATION, A GUILTY PLEA SHOULD REDUCE A SENTENCE BY 50 PERCENT. CHECKS AGAINST OVERCHARGING BY PROSECUTORS CAN BE BUILT INTO THE SCHEME. THUS, PROSECUTORS WHO HAVE CHARGED A CRIME MAY SIMPLY HAVE TO REVEAL WHAT THEIR EVIDENCE IS IN A GUILTY PLEA DISCUSSION. ONE MAJOR ADVANTAGE OF THE FLAT-TIME SENTENCE SCHEME IS THAT IT GIVES LEGISLATURES AN OPPORTUNITY FOR OPEN CHOICES, E.G., IF PRISONS ARE OVERCROWDED, LEGISLATURES MUST PUBLICLY MAKE THE CHOICE OF EITHER BUILDING MORE SPACE AT CONSIDERABLE EXPENSE OR LOWERING SENTENCES.