Introduction
The criminal justice administration system in America is broken, as evidenced by the vagaries caused by plea bargaining. Plea bargaining is not the primary problem facing the criminal justice system from the perspective of administration, but rather the most significant symptom of the problem. The actual problem is an overloaded criminal justice system that cannot cope with the volume and complexity of the cases it has to handle. As a stop-gap solution to the overload, the administration developed the expanded modern concept of plea bargaining in the 1930s. Gradually, plea bargaining took over the criminal justice system to the extent that over 90% of all criminal cases are determined through plea bargains (Jacobi & Berlin, 2017). This overwhelming statistic means that is unavailable to most Americans the express provisions of the 6 th Amendment, which provides for a trial by jury (Neubauer & Fradella, 2018). The solution provided by plea bargaining has prevented administrators from noticing substantive problem of the overloaded system. Further, and perhaps most importantly, plea bargaining has precipitated injustices to the main parties involved in criminal cases, including the victims and defendants. The system also places too much power on prosecutors and law enforcement agencies as they can avoid judicial superintendence to the detriment of defendants, more so members of minority communities (Dervan, 2019). This research paper will take a holistic evaluation of the issue of plea bargaining in the US criminal justice system, including the cause, vagaries, and potential solution to this problem. Several potential solutions can mitigate the vagaries of plea bargaining, including the mitigation of bias and creation of better supervision mechanisms. However, the most effective solution to plea bargaining is to make the practice the exception rather than the norm in the criminal justice system by eliminating the overload.
Background on the Issue
The issue of plea bargaining is as old as the criminal justice system in modern history, and in most cases, the concept has acted to the detriment of defendants and suspects. Legal experts argue that the initial concept of plea bargaining arose from a time when torture and confessions were an integral part of the conventional law criminal justice system (Dervan, 2019). Under the concept, law enforcement agents would torture the suspect as a means of forcing a confession. If the suspect confessed, the torture would end, leading to the next step in the criminal justice system. Avoiding torture was an incentive for suspects to make a false confession. Further, defendants in modern plea bargaining admit the crimes they have not committed as a means of avoiding greater liability through a full trial.
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The USA adopted some of the standard law practices of criminal procedures, such as the adversarial system of justice, but shunned some practices such as torture. Indeed, fairness became a part of criminal procedure in 1791 through the ratification of the Bill of Rights, including the 6 th Amendment (Jacobi & Berlin, 2017; Dervan, 2019). The 6 th Amendment provides for a right to a jury of the defendant's peers, complete with the right to confront the accuser and provide defense witnesses. The practice of a trial by jury became a hallmark on the US criminal justice system until the 1950s when the system was too overloaded to cope. Instead of handling the overload, the administration shifted policy from jury trial to plea bargaining. In the early 1970s, the US Supreme Court gave legal sanction to plea bargaining through landmark decisions such as Brady v. the United States, 397 U.S. 742 (1970) and Santobello v. New York, 404 U.S. 257 (1971) (Neubauer & Fradella, 2018; Dervan, 2019).
Plea bargaining gradually took over the overwhelming majority of cases in the criminal justice system, with some experts estimating that over 90% of all criminal cases in America end through a plea bargain (Davis, 2019). The process of plea bargaining is more straightforward, shorter, and cheaper than a jury trial. It involves the prosecution offering a defendant the option of pleading to a lesser charge an in exchange for a lesser penalty (Davis, 2019). For example, in case of a homicide, the defendant may face a charge of first-degree murder that carries a life sentence or a death sentence in some state jurisdictions. The prosecution may offer the defendant the option of pleading guilty to second-degree murder on the promise of recommending a specific sentence, such as twenty years. If the defendant agrees, the case is settled upon ratification by a judge, and the defendant avoids getting a death sentence.
Importance of the Issue
The problems caused by plea bargaining is vital since it affects the fundamental rights of all Americans. Typically, tens of millions of Americans are affected by criminal proceedings either directly or through a loved one. Further, about 0.7% of all Americans are incarcerated (Neubauer & Fradella, 2018). Having a sound criminal justice system that protects the fundamental rights of defendants is thus vital for all citizens (Jacobi & Berlin, 2017). Secondly, the issue of plea bargaining is critical due to its social justice implications. In the instant context, social justice relates to equal opportunities within the justice system irrespective of the race and social status of the defendant. The requirement of a jury of one’s peer increases the proclivity for equality among citizens. The plea bargaining system removes the decision regarding the guilt or innocence of citizens from the jury and places it on technocrats such as prosecutors (Neubauer & Fradella, 2018). Under the circumstances, biases have a higher proclivity of eroding social justice within the system. Finally, the issue of plea bargaining is critical as it hides a more substantial and more significant problem of an overloaded criminal justice system. On average, Americans have more interactions with the criminal justice system and eventually more convictions and punishments than any other nation in the world (Travis et al., 2014). For clarity, plea bargaining has not caused this more significant crisis as it is mainly due to bad laws, rules, and regulations within law enforcement. However, plea bargaining keeps the broken system functional, thus perpetuating its vagaries (Jacobi & Berlin, 2017). Without plea bargaining, there would be more political goodwill to change the criminal justice system in its entirety because policy makers would realize how overloaded and dysfunctional the system is.
Analysis of the Vagaries of Plea Bargaining
First, among the vagaries of plea bargaining is the perpetuation of discrimination against defendants in the criminal justice system (Berdejó, 2018). Essentially, plea bargaining is a transaction between the prosecution and the defendant. The defendants have the right to a jury trial, which comes at the exponential price to the criminal justice system. On the other hand, the prosecution owns the ability to determine the kind of charges and suggested punishment that the defendant can undergo for the crime (Jacobi & Berlin, 2017). The ability to recommend punishment is not absolute, as the obligation to sentence defendants falls on the judge. However, in most cases, judges will rely on the recommendation of the prosecution. Regarding the kind of charges to bring against the defendant, the prosecutor has immense powers as there is no reference to a judge (Davis, 2019). For example, a defendant who is accused of assaulting another person can face the simple charge of assault with a relatively low potential sentence. However, the prosecutor can elect to charge the defendant with attempted murder or a hate crime, which would carry a much longer sentence.
Moreover, the concept of minimum sentences as set by statute augment the power of prosecutors in determining the outcomes of trial by choosing charges. Prosecutors can use the threat of a minimum charge sentence as an incentive to procure a plea of guilty from a defendant (Alkon, 2016). The exponential power vested upon the prosecutor creates room for discrimination based on prejudices and bias (Berdejó, 2018). Available research shows that white or affluent defendants have a higher proclivity of getting better deals and more lenient punishments than indigent defendants of those from minority communities (Berdejó, 2018). Among the reasons for the discrepancies in offers lie in personal biases among prosecutors, who may not even be aware of these prejudices. Secondly, more affluent defendants are able to launch diligent defenses in court, hence increasing the costs of prosecuting cases. The prosecution will thus have an incentive to settle cases with such defendants, as opposed to indigent defendants.
The second significant vagary of plea bargaining is the propagation of mass incarceration, resulting in the USA having one of the largest prison populations in the world (Travis et al., 2014). Tens of millions of other Americans are received non-custodial sentences such as community service and fines. It is possible to argue that plea bargaining has not caused these individuals to break the law but the concept has made it easier to seek out petty crimes, which creates an incentive for states and local authorities to pile up laws that lead to large volumes of arrests and convictions (Jacobi & Berlin, 2017). Without plea bargaining, many of the petty crime laws would be repealed or changed into civil laws. Finally, plea bargains have also become an incentive for defendants to give false evidence against co-defendants in exchange for lesser sentences. The practice of using plea bargains to procure witnesses also denies defendants the right to due process. Indeed, in the case of Brady v. United States, 397 U.S. 742 (1970), the defendant pleaded guilty upon realizing that a co-defendant had agreed to testify against him. The threat of such a witness can be an effective tool for false plea bargains, which raises ethical concerns (Alkon, 2016).
Possible Solutions
Limiting the Powers of Prosecutors
The first potential solution is reducing the propensity for bias, prejudice, and discrimination by reducing the powers of the prosecutor. For clarity, this solution does not imply that all prosecutors are corrupt or incompetent. Be that as it may, all prosecutors are humans and psychologically, humans are prone to prejudices and presuppositions (Berdejó, 2018). For example, every person carries an element of racial prejudice. An experiment about racial prejudice that tested reflexes revealed that some African Americans reflected prejudice against black people and in favor of white people, according to Myers (2014). The solution to avoid such biases and prejudices from having an impact on the plea bargain is to reduce the discretions that are available to the prosecutors. For example, the decision on what offers to make to a defendant can be made by a panel selected for such determination by the local or federal prosecutor’s office. Through deliberations, the professionals making the decisions can detect and mitigate the impact of individual prejudices and biases.
Creating a Review Board for Plea Bargains
The second proposed solution is to create review boards that undertake a form of review on select cases that have been determined through plea bargains. For reference, doctors have similar panels that review medical decisions in the case of an incidence. Such panels are generally used as educational tools, but when the review reflects misconduct, the errant party can be referred to as the requisite disciplinary panel. A proposed operating procedure for this panel would be allowing for convicts who feel aggrieved by a plea bargaining process to the panel’s secretariat. The secretariat can determine which complaints are meritorious and forward them to the review board. The Board would then review the decision and ii necessary be seek clarifications from the prosecutor involved. The general idea behind the panel is not to find fault with prosecutors but rather to discourage rash or unfair plea offers or bargains.
Reducing Plea Bargains
A more radical and extensive solution would be to reduce plea bargains, from the current rate of over 97% to a maximum of below 40% of all cases within a given jurisdiction through legislation. This hybrid solution has two main components. First, is admits that to some extent, plea bargaining can be a useful tool for the criminal justice system. The prosecutors can use the available 40% of cases to utilize the benefits of plea bargains. However, for the bulk of the cases, at least 60%, the criminal justice system would have to use jury trials. The need to focus on jury trials would eliminate the need for prosecutors to harass defendants into unacceptable plea bargains through threats and coercion, as prosecutors would use available plea bargains sparingly. Secondly, shifting from less than 10% of cases going to trial to more than 60% would create a massive backlog and potentially cripple the operations of criminal courts. This negative impact would compel the criminal justice system to admit that it can no longer cope, leading to substantive reforms. Among the critical areas of reforms would include decriminalizing some of the petty crimes under the current criminal law regimen that can be handled by civilian means such as civil suits which are simpler to litigate.
Changing the Criminal Justice System
The final potential solution would be to eliminate plea bargains altogether and change the criminal justice system into a predominantly inquisitorial system. Under this approach, only the most serious crimes would be left to the adversarial system. For example, any criminal cases that would attract a sentence of over ten years in jail will be under the adversarial system. Under this adversarial system, there would be no plea bargaining. Any defendant who wishes to plead guilty would still have a sentencing hearing before a judge, and in capital sentence cases, before a jury. All other cases would be addressed by judges who undertake fact-finding missions, including investigations if need be. The inquisitor system already has precedence in America, as some minor cases such as those in traffic court allow the judge to ask questions and make a decision (Neubauer & Fradella, 2018). The system only needs to expand to cover most criminal cases, except for aggravated crimes.
Chosen Solution
Each of the four suggestions above carries some merit and an elaborate pro et contra. The most suitable solution under the current US criminal justice environment is the third option. Under the first and second options, there is a high chance most criminal cases would end up in plea bargains. Any criminal justice system where the norm is reduced to under 10% with a makeshift solution handling the overwhelming majority of cases must be wrong. The fourth option would be the most ideal but also the most difficult to implement. A jury of peers is a constitutionally guaranteed right, and taking it aware may necessitate a constitutional amendment. In America, some critical constitutional amendments take decades to enact, yet the instant problem needs an urgent solution. The third solution involves finding a middle ground that leaves the criminal justice system enjoying the benefits of plea bargains but not abusing the process. Further, the third solution will reveal that the criminal justice system is broken, thus creating room for a gradual but definitive overhaul. The best solution is the third option, which involves exponentially reducing plea bargains from highs of 97% to below 40%, making for a reduction of under 50%. This solution would be easy to attain as the minimums can be set through legislation. Secondly, this solution would encourage policymakers to resolve the substantive problem of an overloaded criminal justice system, as the problem will become more noticeable.
Conclusion
America has a broken criminal justice system, yet the concept of plea bargains has stood in the way of a substantive solution. With plea bargains solving over 90% of all criminal cases in most jurisdictions in America, jury trials have become a rare exception. However, this rare exception is guaranteed by the US Constitution’s 6 th Amendment. The main reason why plea bargains have become overwhelming is the large volume of cases in the American criminal justice system. Based on the fact that the USA has the most significant prisoner ratio in the world, the reasonable explanation is that the system overly targets American citizens through over-criminalization. Since plea bargains have some benefits, the proposed solutions should limit plea bargains to under 40% of all cases in a jurisdiction. The available apparatus cannot handle a jury trial increase from under 10% to over 60%, this proposed solution will also compel a criminal justice system overhaul.
References
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