NCJ Number
52829
Journal
Creighton Law Review Volume: 11 Issue: 1 Dated: (OCTOBER 1977) Pages: 94-149
Date Published
1978
Length
56 pages
Annotation
PLEA-BARGAINING PRACTICES IN NEBRASKA ARE ANALYZED, WITH REFERENCE TO A SURVEY OF COUNTY PROSECUTORS, AND SUGGESTIONS FOR ENSURING CONSISTENCY IN CONCESSIONS OFFERED IN EXCHANGE FOR GUILTY PLEAS ARE PRESENTED.
Abstract
DUE PROCESS REQUIREMENTS FOR THE ACCEPTANCE OF GUILTY PLEAS ARE DISCUSSED. THE CONCEPT OF THE VOLUNTARY AND INTELLIGENT PLEA AS DEVELOPED BY THE U.S. SUPREME COURT IS COMPARED WITH NEBRASKA LAW, WHICH GENERALLY HAS RELIED ON THE AMERICAN BAR ASSOCIATION'S GUILTY PLEA STANDARDS. THE IMPACT OF JUDICIAL ACCEPTANCE OF PLEA BARGAINING IS ALSO CONSIDERED. IT IS CONCLUDED THAT THE SAFEGUARDS DEVELOPED BY THE SUPREME COURT DO LITTLE TO LIMIT PROSECUTORIAL DISCRETION IN PLEA NEGOTIATION. EXAMINATION OF THE RESPONSES OF 62 OF NEBRASKA'S 93 COUNTY ATTORNEYS TO A QUESTIONNAIRE SURVEY REVEALS THAT PLEA BARGAINING IS A WIDESPREAD PRACTICE, ACCOUNTING FOR 30 TO 60 PERCENT OF THE PROSECUTOR'S CASELOADS. RURAL PROSECUTORS BARGAIN AS OFTEN AS THEIR URBAN COUNTERPARTS. PROSECUTORS HAVE ESSENTIALLY UNBRIDLED DISCRETION IN PLEA NEGOTIATION. MOST OFFICES HAVE NO FORMAL RULES FOR BARGAINING, ALTHOUGH THERE APPEARS TO BE SOME CONSENSUS REGARDING FACTORS TO BE CONSIDERED IN DECIDING WHETHER TO BARGAIN (THE NATURE OF THE CRIME, STRENGTH OF THE CASE, AND INTERESTS OF JUSTICE). BOUNDARIES BETWEEN ETHICAL AND UNETHICAL BEHAVIOR (OVERCHARGING, INITIATING NEGOTIATION, WITHHOLDING EVIDENCE FROM DEFENSE COUNSEL DURING BARGAINING) SEEM VAGUE. PROSECUTORS NOTE A DIFFERENCE IN THE BARGAINING APPROACHES OF PRIVATELY RETAINED COUNSEL, APPOINTED ATTORNEYS, AND PUBLIC DEFENDERS. THE VAST MAJORITY OF RESPONDENTS FEEL THAT PLEA BARGAINING SERVES THE INTERESTS OF JUSTICE. IN LIGHT OF THE UNCERTAINTY REGARDING THE EFFECTS OF ABOLISHING PLEA BARGAINING, A MODEL FOR IMPROVING PLEA-BARGAINING PRACTICES IS OUTLINED. THE MODEL, WHICH IS BASED ON A NUMBERING SYSTEM USED IN SENTENCING IN EL PASO AND BELTON, TEX., QUANTIFIES CERTAIN FACTORS IN PLEA BARGAINING (NATURE OF THE CRIME, AGGRAVATING CIRCUMSTANCES, THE DEFENDANT'S CRIMINAL RECORD, NUMBER OF COUNTS CHARGED) AND SETS FORTH GUIDELINES RELATIVE TO SENTENCE RECOMMENDATION, CHARGING, THE DECISION TO NEGOTIATE (CHARGE REDUCTION, COUNT REDUCTION, CONSULTATION), AND DISCLOSURE OF THE PLEA AGREEMENT IN COURT. A DESCRIPTION OF THE EL PASO-BELTON NUMBERING SYSTEM IS APPENDED. (LKM)