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Chapter Thirteen : Negotiated Justice and the Plea of Guilty.

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1 Chapter Thirteen : Negotiated Justice and the Plea of Guilty

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

3 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)

4 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)

5 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)


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

8 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)

9 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)

10 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 prosecutor’s risk with no trial. A conviction emphasizes deterrent objectives of law enforcement.

11 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).

12 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.

13 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.

14 Decision Making Norms Consideration of the following shared norms structure plea negotiations: Seriousness of the Offense I Prior Record I The Strength of the Prosecutor’s Case, i.e., the Evidence.

15 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)?

16 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

17 Accepting the Plea The judge must question the defendant on the following issues: Boykin v. Alabama (1969) Whether the defendant’s 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.

18 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.)


20 Questions: What is a plea of nolo contendere? What is an Alford plea?

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

22 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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