NEGOTIATED JUSTICE AND THE PLEA FO GUILTY 

I.          Plea bargaining is a frequent practice in most courts.

A.        Plea bargaining involves the prosecutor offering some gain to the defendant in return for the defendant pleading guilty.

B.        Plea bargaining began in state courts after the Civil War and in federal courts during Prohibition.

            C.        Three types of plea negotiations or bargains:

                        1.         Charge bargaining

                        2.         Count bargaining

                        3.         Sentence bargaining

II.        There are a number of explanations for the existence of plea bargaining.

A.                 The excessive caseload hypothesis suggests it is in response to a need to move cases quickly

1.                  Cannot explain why plea bargaining exists in both strained and low-caseload courts

2.                  May be part of the explanation but cannot explain all

B.                 Other explanations stress the courtroom workgroup.

1.                  Workgroup members have discretion and common interest in not spending trying cases about which there are no significant legal or factual issues.

2.                  Weak cases have already been screened out and most cases come with the presumption of factual guilt.

3.                  Workgroup norms guide plea bargaining and there may be a jury trial penalty if the defendant goes to trial.

III.       Entering a plea is a formal court process.

A.                 Defendants must formally waive rights and receive an explanation

B.                 Courts generally require defendant’s to read and sign a form (Boykin form).

C.                 Two possible pleas:

1.                  Guilty

2.                  Nolo contendere

a.                  Means the defendant does not contest the charges

b.                  Has all same criminal consequences as guilty plea

c.                   Plea cannot be used against defendant in civil case

D.                Judges have discretion to reject plea bargains.

E.                 Entering the plea must be on the record.

F.                  If the plea is not kept either side can withdraw from the agreement.

G.                Even persons who claim innocence can plead guilty if there is a factual basis for the plea (Alford plea).

IV.       Plea bargaining is a controversial topic.

A.                 The U.S. Supreme Court has been tolerant of plea bargaining practices.

B.                 Some criticize plea bargaining for result in excessive leniency and/or defendant’s being railroaded.

C.                 Attempts to outlaw or reform plea bargaining have not always been successful.

1.                  Personnel may find a way to get around the rules.

2.                  Discretion may shift to other areas in the system.