NCJ Number
85582
Journal
Louisiana Law Review Volume: 42 Issue: 1 Dated: (1981) Pages: 79-121
Date Published
1981
Length
43 pages
Annotation
This article argues that plea bargaining should be under judicial rather than prosecutorial control, that mandatory minimum sentences are undesirable, and that the current plea bargaining system should be abolished.
Abstract
The Supreme Court rendered its approval of the plea bargaining process in the 1971 decision of Santobello v. New York. The Court went further by adopting a laissez-faire attitude toward what goes on during the plea bargaining process in its 1978 holding in Bordenkircher v. Hayes. The major problem with the current plea bargaining process is that it effectively grants the prosecutor de facto power to determine the sentence a defendant is to receive. The use of mandatory minimum sentences reduces further judicial discretion as to appropriate punishment. It is suggested that an alternative process be adopted. Adversarial plea bargaining of all kinds between prosecutor and defense counsel should be prohibited. After defendants are charged, they would make application in camera for a sentencing judge to ascertain a maximum penalty defendants would receive if they pleaded guilty. In pleading guilty, defendants would elect a nonadversary alternative to trial. Defendants would thus be better able to decide whether to choose the traditional adversarial route or the new nonadversarial alternative. Although there are constitutional problems with this proposal, they could be resolved, and the defendant could face the problem of the charge in a simple, relatively inexpensive, and direct manner. The article provides 236 footnotes.