Chapter Thirteen: Negotiated Justice and the Plea of Guilty

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Chapter ThirteenNegotiated Justice and the Plea
of Guilty
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Plea Bargaining

• The process through which a defendant
• pleads guilty to a criminal charge
• with the expectation of receiving
• some consideration from the state.

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Charge Bargaining

• The defendant pleads to a charge less serious
  than the one originally filed.
• The principal effect of a plea to a less serious
  charge is to reduce the potential sentence.
• (Major issue Overcharging)

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Count Bargaining

• The defendant pleads guilty to some,
• but not all, of the counts contained
• in the charging document.
• The principal effect of pleading to less counts
  is to reduce the potential sentence.
• (Major Issue Concurrent v. Consecutive
  Sentences)

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Sentence Bargaining

• The defendant pleads guilty knowing the sentence
  that will be imposed.
• The principal effect of a sentence bargain is to
  reduce the maximum sentence.
• (Major Issue Perception of Leniency)

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Questions

• How do caseloads affect plea bargaining?
• What is the presumption of factual guilt?
• What are the costs and risks of trial?

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• With plea bargaining,
• it is not the issue of legal guilt
• that is most often in dispute,
• but rather what sentence
• to impose on the guilty.
• (Major Issue Individualized Justice)

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Plea Bargaining and the Courtroom Workgroup

• Bargaining occurs between
• the prosecutor, the defendant,
• the defense attorney or public defender,
• and,
• sometimes the judge.
• (Major Issue Conflicting Objectives)

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Objectives of the Prosecutor

• The prosecutor normally controls the negotiating
  process. For example, the prosecutor can bargain
  or not bargain, he can threaten a more serious
  charge if the defendant does not plead, and he
  can force a dangerous defendant to plea on the
  nose or go to trial and suffer the trial penalty.
• The prosecutor can pursue strong cases and
  dismiss weaker cases.
• There is the certainty and finality of a
  conviction.
• A plea bargain minimizes the prosecutors risk
  with no trial.
• A conviction emphasizes deterrent objectives of
  law enforcement.

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Objectives of Defendants

• The primary benefit of a plea is a lenient
  sentence.
• A common perception is that defendants who refuse
  to plead guilty receive harsher sentences.
• For those unable to post bail, a plea can mean an
  immediate release (either probation or for time
  served).

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Objectives of Defense Attorneys

• The defense attorney must assess the guilty plea
  offer and weigh the costs.
• The defense attorney negotiates the terms.
• The defense attorney counsels the defendant. The
  defendant may or may not accept the offer.
• The defense attorney tries to get the best deal
  possible for the defendant.

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Objectives of Judges

• The judge is dependent on the prosecutor, and to
  a lesser extent, the defense attorney, for
  knowledge about the case.
• The courtroom workgroup negotiate dispositions
  that incorporate the judges expectations.
• Judges may reject a plea agreement, but rarely
  do.
• Judicial participation varies greatly from state
  to state, from actively involved to merely
  ratifying agreements.

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Decision Making Norms

• Consideration of the following shared norms
• structure plea negotiations
• Seriousness of the Offense
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• Prior Record
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• The Strength of the Prosecutors Case, i.e.,
• the Evidence.

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Questions

• Which cases are more likely to go to trial?
• When do defense attorneys
• recommend a trial?
• What is the importance of
• the Supreme Court case
• Bordenkircher v. Hayes (1978)?

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The Plea

• A plea of guilty infers the following
• Admission of guilt
• Waiver of the presumption of innocence
• Waiver of the right to a jury trial
• Waiver of the right to confront witnesses
• Waiver of the right to self-incrimination

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Accepting the Plea

• The judge must question the defendant
• on the following issues
• Boykin v. Alabama (1969)
• Whether the defendants plea is intelligent and
  voluntary.
• Whether the defendant understands the nature of
  the charge and the possible punishment upon
  conviction.
• Whether any threat was made.
• Whether the defendant is satisfied with the
  services of defense counsel.
• Whether the defendant understands the forfeiture
  of a jury trial.

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Recording the Plea

• Boykin Form plea of guilty.
• Federal Rules of Criminal Procedure plea
  agreement - federal courts. (Defendants can
  withdraw a guilty plea however, defendants must
  live up to their end of the plea agreement.)

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Questions

• What is a plea of nolo contendere?
• What is an Alford plea?

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• Attempts to abolish plea bargaining
• often produce
• a number of offsetting changes.
• What is the hydraulic effect?
• How would it control discretion?

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• Plea bargaining is best understood,
• not as a response to the pressure
• of caseload, but as an adaptation to
• the realities of the types of cases
• requiring court disposition.

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