NCJ Number
14629
Journal
University of Chicago Law Review Volume: 36 Dated: (1968) Pages: 50-112
Date Published
1968
Length
63 pages
Annotation
DISCUSSION OF PLEA BARGAINING, FOCUSING ON FACTORS GUIDING THE PROSECUTOR'S DECISION, THE FLEXIBILITY OF THE PRACTICE, AND THE PRACTICE OF OVERCHARGING.
Abstract
IN BARGAINING AND MAKING CONCESSIONS FOR PLEAS, THE PROSECUTOR BECOMES TO SOME DEGREE AN ADMINISTRATOR, AN ADVOCATE, A JUDGE, AND A LEGISLATOR. AS AN ADMINISTRATOR, HIS GOAL IS TO DISPOSE OF EACH CASE IN THE FASTEST, MOST EFFICIENT MANNER IN THE INTEREST OF GETTING HIS AND THE COURT'S WORK DONE. AS AN ADVOCATE, HIS GOAL IS TO MAXIMIZE THE NUMBER OF CONVICTIONS AND SEVERITY OF SENTENCES. AS A JUDGE, HE PURPORTS TO DO WHAT IS 'RIGHT' FOR EACH INDIVIDUAL DEFENDANT. FINALLY, AS A LEGISLATOR, HE ATTEMPTS TO LESSEN THE IMPACT OF STATUTES THAT HE FEELS COMMAND TOO HARSH A PENALTY FOR THE CRIME. OTHER FACTORS INFLUENCE THE PROSECUTOR IN BARGAINING TO A LESSER EXTENT- PERSONAL RELATIONSHIPS BETWEEN THE PROSECUTOR AND DEFENSE ATTORNEY, ATTITUDES OF THE POLICE PERSONNEL INVOLVED, THE RACE AND PERSONAL CHARACTERISTICS OF THE DEFENDANT, AND THE DESIRES OF THE VICTIM. PROSECUTOR'S CONCEPTS OF THE FOUR BASIC ROLES VARY CONSIDERABLY. ONLY A FEW ACCEPT THE LEGISLATIVE ROLE-MOST FEEL IT WOULD BE IMPROPER TO LET THEIR JUDGEMENTS OF THE LAW INFLUENCE THEIR OPINIONS. THE JUDICIAL ROLE IS UNIMPROTANT TO MOST. (IT IS INTERESTING TO NOTE, HOWEVER, THAT A FEW, ESPECIALLY OLDER, CAREER PROSECUTORS BELIEVE THIS SHOULD OUTWEIGH ALL OTHER FACTORS.) MOST AGREE THAT THE ADMINISTRATIVE ROLE IS THE MOST BASIC. PROSECUTORS IN THE STUDY WERE VIRTUALLY UNANIMOUS ON ONE POINT- THE STRENGTH OR WEAKNESS OF THE STATE'S CASE IS THE MOST IMPORTANT FACTOR IN BARGAINING. THE WEAKER THE PROSECUTOR'S CASE, THE GREATER HIS CONCESSIONS. AS CONCESSIONS INCREASE, THE DEFENDANT FEELS A TREMENDOUS PRESSURE TO PLEAD GUILTY. THE DEFENDANT SIMPLY CANNOT RISK A CONVICTION AT TRIAL WHEN HE IS OFFERED A MILD SENTENCE IN RETURN FOR A PLEA TO A MINOR CHARGE. SINCE IT CAN BE ASSUMED THAT THE CHANCES OF THE DEFENDANT BEING INNOCENT INCREASE AS THE STATE'S CASE WEAKENS, THE DANGERS OF FALSE CONVICTIONS ARE APPARENT. ALTHOUGH FEW WOULD ADMIT TO PROSECUTING AN INDIVIDUAL WHILE NOT BEING PERSONALLY CONVINCED OF HIS GUILT, THIS OFTEN HAPPENS IN THE 'HEAT OF THE PROSECUTOR'S DAY.' PENOLOGICAL FACTORS ARE NOT CONSIDERED IN THE PROSECUTOR'S ADMINISTRATIVE ROLE. PLEA BARGAINING IS MORE FLEXIBLE THAN TRADITIONAL FORMS OF ADJUDICATION. 'FLEXIBILITY IS, HOWEVER, AN ADVANTAGE THAT ALL LAWLESS SYSTEMS EXHIBIT IN COMPARISON WITH SYSTEMS OF ADMINISTERING JUSTICE BY RULES.' ALTHOUGH MOST WOULD PROBABLY DISAPPROVE OF GRANTING THE COURT THE LAWLESS FLEXIBILITY THAT THE PROSECUTOR ENJOYS IN PLEA BARGAINING, AT LEAST DECISIONS THEN WOULD BE VISIBLE AND MADE ON THE BASIS OF THE EVIDENCE. PROSECUTORS OFTEN WILL BARGAIN AFTER CONVICTION TO AVOID A POSSIBLE UNFAVORABLE DECISION ON APPEAL. AFTER CONVICTION, A MOTION FOR A NEW TRIAL IS GRANTED, A GUILTY PLEA IS ACCEPTED, AND A FAVORABLE SENTENCE IS IMPOSED AT THE SECOND TRIAL. THIS PRACTICE IS LESS FREQUENT THAN PRE-TRIAL BARGAINING. THE ORIGINAL CHARGE IS THE 'ASKING PRICE' IN A BARGAINING SITUATION. ALTHOUGH MOST PROSECUTORS CONDEMN OVERCHARGING, THEY DEFINE IT DIFFERENTLY THAN DEFENSE ATTORNEYS. TO PROSECUTORS, OVERCHARGING IS ACCUSING THE DEFENDANT OF A CRIME OF WHICH HE IS CLEARLY INNOCENT TO INDUCE A PLEA TO THE 'PROPER' CRIME. DEFENSE COUNSEL IDENTIFY TWO TYPES OF OVERCHARGING. 'HORIZONTAL' OVERCHARGING IS THE UNREASONABLE MULTIPLYING OF ACCUSATIONS AGAINST A SINGLE DEFENDANT. HE MAY BE EITHER CHARGED WITH A SEPARATE OFFENSE FOR EVERY TECHNICAL CRIMINAL TRANSACTION IN WHICH HE PARTICIPATED, OR THE PROSECUTOR MAY FRAGMENT A SINGLE CRIMINAL TRANSACTION INTO NUMEROUS COMPONENT OFFENSES. 'VERTICAL' OVERCHARGING IS CHARGING A SINGLE OFFENSE AT A HIGHER LEVEL THAN THE CIRCUMSTANCES OF THE CASE SEEM TO WARRANT. THE ORIGINAL CHARGE USUALLY ENCOMPASSES THE CHARGE THE PROSECUTOR 'WANTS' AS A LESSER INCLUDED OFFENSE. DEFENSE COUNSEL AGREE THAT THE CHARGES MAY BE PERFECTLY LEGAL. ON THE OTHER HAND, THEY NOTE THAT PROSECUTORS RARELY SEEK CONVICTIONS ON THE ORIGINAL COMPLAINT. PROSECUTORS' MOTIVES IN PLEA BARGAINING ARE OFTEN AT VARIANCE WITH HIS DUTIES AS GUARDIAN OF THE PUBLIC INTEREST. THE PROSECUTOR GAINS A CONVICTION--AN OCCUPATIONAL AND POLITICAL PLUS-WHEN HE GRANTS LENIENCY AND ACCEPTS A PLEA. THE PUBLIC INTEREST, HOWEVER, MAY BE BETTER SERVED BY A LENGTHY PRISON TERM. IN HIGHLY PUBLICIZED CASES OF PARTICULARLY BRUTAL CRIMES, THE PROSECUTOR MAY ELECT TO BLAME AN ACQUITTAL ON THE JURY IN A WEAK CASE RATHER THAN ACCEPT A PLEA AND APPEAR LENIENT. THE PUBLIC INTEREST, HOWEVER, MAY BE BETTER SERVED BY EVEN A SHORT PERIOD OF CONFINEMENT. MOST PROSECUTOR'S CAREERS ARE RELATIVELY SHORT. WITH AN EYE TOWARDS PRACTICE ON THE 'OUTSIDE', THE PROSECUTOR'S MOTIVES TO BE LIKED BY OTHER MEMBERS OF THE PROFESSION MAY RESULT IN UNWARRANTED GENEROSITY. UNDER THE PLEA BARGAINING SYSTEM, AN OBJECTIVE EVALUATION OF TREATMENT GOALS NEVER OCCURS. PLEA BARGAINING MERGES THE FUNCTION OF THE CRIMINAL JUSTICE SYSTEM INTO A SINGLE JUDGEMENT OFTEN INFLUENCED BY EXTRANEOUS FACTORS AND PERSONAL INTERESTS.