APA Style Sheet 1

Running head: UNIT 5 MIDTERM

Associated Issues with Plea Bargaining

Kathy Wiersma

Kaplan University

CJ505 Critical Issues in Criminal Justice

James Adcock

December 10, 2010

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Associated Issues with Plea Bargaining

Within the United States Constitution and the States’ constitution we are given criminal

procedural provisions that we will be govern by fair procedures a Due Process State. Within this

state a defendants are judged by a group of their peers with a large amount of safeguards to

protect one from the state’s power or any mistakes. It is also written that one is entitled to speedy

and public trials with competent counsel. Our States have their own set of safeguards as well

and they are constitutional authority to prosecute and punish criminal offenders, discovery from

the defense, evidence codes to protect both sides from wasteful, abusive, or misleading evidence.

They also have a right along with the defense to illuminate potential bias jurors. This Due

Process State is more of a promise than the actual reality because of the plea bargaining that

takes place it according to Taslitz, 2008 he calls it a Guilty Plea State due to the fact that

negotiations take place behind closed doors and in secret even from the judge whom is assigned

to the case. There is no transcript of the discussions that take place and any if most constitutional

and statutory rights are waived during the process of the negotiations. This leads one to wonder

how we allow this to continue to happen. The defense along with the prosecution assesses the

risk of loss at trial and weigh it out to what sort of plea will be accepted.

The argument for allowing the plea bargaining is that both sides suffer from massive case

loads, declining finances that make serious investigation and difficult, time-consuming

negotiations unaffordable in common cases. This leads us to the real problem of plea bargaining

which is the unregulated status of the system and living in the dream state that of Due Process.

Another problem is if we would halt the system it would collapse due to the sheer volume of

cases going to trial. Advocates get caught up in the moment and forget the realities that constrain

choices of the individual cases that are out there. The advocates tend not to adapt to these
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constraints nor find ways to resolve these issues. You need to get tactical, reformist, and ethical

information to operate in a Guilty Plea State. A Federal Rule of Evidence 410 state it is

generally prohibits statements that are made during a guilty plea negotiation against a defendant

at trial. This was the case in United States v. Mezzannatto, 513 U.S. 196 (1995) the United

States supreme Court sanctioned the practice of some prosecutors ‘refusing even to discuss the

possibility of a guilty plea absent a prior waiver by the defendant of his or her Rule 410 rights.

The only limitation that the courts placed on this was that it must be ‘voluntary”. This said it

leads us to look at how many prosecutors are using this to seek waivers in a wide array of

constitutional rights as the precondition to plea agreement negotiations. Taslitz argues that we

must defend constitutional rights more so than non- constitutional rights because they play an

important role in defining our justice system in America.

This brings us to the problem of our justice system, if a defendant waives their rights to a

trial and plead guilty they most likely receive reduction in their sentencing or charges but if they

exercise their right to a trial then they often receive stiffer sentences and no reduction of their

charges sometimes actually having charges added on. This to me does not seem fair and it is a

great injustice to or justice system. In Bordenkircher v. Hayes (1978) the United States Supreme

Court upheld the life sentence of a man who wrote a bad check. His sentencing came under

Kentucky’s Habitual Criminal Act. Hayes was facing his third offense making him the subject

of the act. During his plea negotiations the prosecutor had offered Hayes a 5-year sentence for

the bad check charge and he also made it very clear to Hayes that if he did not waive his rights to

a trial and accept that plea he would go back and charge him for being a habitual offender. The

courts did not find that the prosecutor acted in a vindictive way at all rather that Hayes was pre-

warned prior to deciding to go to trial. If he would have agreed than he would have not been
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charged for being a habitual offender and only would have served the five years instead. This

would be considered plausible if a criminal defendant suffered non-waiver penalties that could

be explained. In this case I find it rather questionable whether you can explain it or not and that

the habitual charge even took affect because he wrote a bad check not robbed someone or had

numerous DWI’s. You need to consider cases that reveal things during a trial about their crimes

that one did not know like the severity of the crime prior to trial warranted a sentence at the

midpoint of the sentencing range and that is why the prosecutor offered the defendant prior to

trial and yet when it went to trial the testimony and other evidence should that the defendant’s

actions where more blame worthy and so the prosecutor asks the judge to sentence him or her on

the upper end of the sentencing guideline. It would be very hard to try to say that this was

vindictive on the part of the prosecutor because the evidence shows that the defendant received

the stiffer sentence not because they exercised their rights to a trial but because it fit better

towards the crime they committed. This sentence seems to be more appropriate for an outcome

of the adjudicative process instead of a non-waiver penalty.

It brings us back to whether this is reward or penalty and if justice was served or not. It

is complicated in the fact that one would presume that the defendant is guilty, know they are

guilty and should not waste the time of the court to prove otherwise. The problem lies with the

fact that defendants will sometimes exercise their rights to a trial and it will be very difficult in

practice to distinguish them from defendants whose exercise of the right is unjustifiable. It goes

to show that some defendants are truly innocent of some or all of the charges and go to trial

hoping that justice will vindicate them while others go to trial hoping to prove that they are not

guilty of the charges against them. This leaves the rest of the defendants that go to trial knowing

they are guilty yet wanting to use this moment for forums to put state’s laws or its enforcements
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on trial. These kinds of defendants have little hope of being found innocent but it’s a great

political avenue to pursue and give them leverage to rant their political views. The example is the

case against Brian Mitchell (2010) Utah has found him guilty even though he continued to either

sing religious songs or speak out of turn preaching the gospel according to himself. His religious

antics fell on deaf ears. This is truly a case where no plea bargain was offered to him but a deal

was made with his wife so she would be a witness against him.

If a defendant exercises their rights to a trial we are essentially having them do what we

want them to do given the understanding of the circumstances. By them contesting their charges

against them it leaves the prosecutor to work harder to prove their guilt or drop charges it also

gives the defense attorney more incentive to challenge the prosecution’s case against their client.

If we give in to the guilty plea instead these things will not happen.

To the question of whether plea agreements undermine our justice system and the law

that would be a yes it does. Our constitution was set up to have checks and balances in it so no

one person or branch of government had too much power. With plea arrangements this form of

checks and balances are not in place and the prosecution has total control of any given situation.

It also is a known fact that only 10% of cases go to trial this is not using the constitutional rights

that are given to the people of the United States. That the defendant has an absolute right in

America to compel the State to investigate its own case, find its own witnesses, prove its own

facts, and convince the jury with its own resources. The defendant has the fundamental rights to

remain silent, challenging the State at every point to prove them guilty by limiting the powers of

the police and the prosecutors, the Bill of Rights safeguards freedom (Lynch, 2003). This leaves

one to believe that the government officials have done everything possible to limit the jury trial

system to be used and the primary issue of the government to bypass the safeguards of trials. It
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is our Supreme Courts whom have gotten down on the government for coercing individuals and

organizations into surrendering their constitutional rights yet they allow plea agreements that do

just this. In the words of Chief Judge William G. Young of the Federal district Court in

Massachusetts filed an opinion on what is happening in our modern justice system. He states,

“Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to

trial is today stark, brutal, and incontrovertible…today, under the sentencing Guidelines regime

with its vast shift of power to the Executive that disparity has widened to an incredible 500

percent”. He further makes his opinion known about the fact that one is simply punished

severally for going to trial (Lynch, 2003).

I think that with some offenses it would truly be a waste of time to go to trial but for the

majority I would have to say anything over a misdemeanor should have a chance at a trial and

not plea out like they do in 90% of the cases. It also should be noted that a judge should be

involved in the discussions and they should not be done in private because this would allow all

sides to be honest and forthcoming.

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References

Mongrain, S. and Roberts, J. (2007), Plea Bargaining with Budgetary Constraints,

Retrieved from Kaplan University Library on 12/6/2010

Lynch, T. (2003), The case Against Plea Bargaining, Cato Institute’s Project of Criminal

Justice, Retrieved from Kaplan University Library on 12/6/2010

Lippke, R. (2007), To waive or Not to waive: The Right to Trial and Plea Bargaining,

Springer Science and Business Media, retrieved from Kaplan University Library on 12/6/2010

Taslitz, A. (2008), The Guilty Plea State, Criminal Justice, Chicago, Retrieved from

Kaplan University Library on 12/7/2010

Time Magazine, (2010), Plea Bargaining a Cop-Out, Retrieved on 12/7/2010,

http://www.time.com/time/printout/0,8816,916340,00.html