Oct 28, 2007

the morality of plea bargaining

Below are some potential angles of attack for an Aff in the plea bargaining resolution. Negs should read, too, and consider potential responses.

In "The Morality of Copping a Plea," from Maclean's*, July 9-16, 2007, reporter Steve Maich turns to John Langbein, "professor of law and legal history at Yale, and an outspoken critic of the system," for thoughts.
"Plea bargaining works by threat, and it goes like this: Oh, you want to exercise your constitutional right to a jury trial? Please be our guest. But understand that if you exercise that right we will punish you much more severely,'" [Langbein] says. "In effect, that means we are punishing you twice. Once for what you did and once for having the temerity to exercise your right to face a jury."

To Langbein and other critics, the gap in sentences handed to those who co-operate with prosecutors, versus those who maintain their innocence and go to trial, illustrates a form of coercion that underlies practically every serious prosecution in Canada and the U.S. Perhaps the most famous example unfolded in the late 1970s, in the case of Paul Lewis Hayes, a small-time American fraudster and petty criminal. Hayes already had two felony convictions on his record when he was caught forging a cheque for US $88.00. Prosecutors told Hayes he would get a five-year prison term if he pleaded guilty, but if he chose to go to trial, he would he indicted under Kentucky's Habitual Criminal Act, which carried a mandatory sentence of life in prison....

"The problem is, many of the laws these people are being prosecuted under are vague, and are not understood to be breaches of the law. Then the prosecutor comes along and says, I'm going to press charges and put you in the slammer--and in the United States, because of our sentencing savagery in such cases, that means forever and ever unless, that is, you agree to incriminate yourself and whoever it is I really want to nail--whether that's Ken Lay or Jeff Skilling or whoever." Both Canada and the United States are based on a legal tradition that envisions a jury of lay people as a check against potential abuses of power by the state. But plea bargaining concentrates all of that power into the hands of individuals who are, in the U.S., politicians, and in Canada, civil servants.

"What it does is defeat the age-old wisdom that led us to divide the charging and investigative function on one hand from our determinative and sentencing functions," Langbein says. "What's happened is the prosecutor has combined all those functions in one set of hands: he is the investigative officer, the prosecutorial officer, the determinative officer and the sentencing officer." Police, judge and jury in one incredibly powerful office.
When citing the article, be careful to distinguish Langbein's words from the reporter's commentary, which may carry less weight.



*Maclean's is a Canadian magazine, but since Canada's plea bargaining system is similar to the U.S.'s, and the article quotes an American legal scholar, the information is highly relevant to the debate over the current resolution.

10 comments:

Kat said...

Although you can argue the society is being unjust by offering them a much harsher sentence if they choose to pursue a trial,if a person is fully aware of the chances of their punishment and still makes the choice to have trial then it is just. If this person is a rational person then we can assume he's making his own rational decisions so it is therefore justified. The State is not forcing him or her.

Jim Anderson said...

kat, an interesting response. Why is rationality a criterion for justification, though? A criminal might put a gun in my face and say "Give me all your money," at which point it would be perfectly rational for me to give up the cash in order to protect my life. After all, I'm aware of the chances of "punishment" should I choose to test his scheme, and I am a rational person who values his life and his family.

What I'm essentially arguing is that a severe enough threat of force is coercion. You can argue whether coercion is justified, but that's a separate matter from their rational acceptance or rejection of the choices offered.

Anne said...

About the criminal being punished once for the crime and once for exercising their right: This happens when the jury finds them guilty. So assuming they're guilty, would they be guilty of perjury as well as their original crime for proclaiming innocence and taking the case to trial? You could also argue that this obstructs justice by postponing serious cases and as more time passes, people forget things that could have made a difference.

Anonymous said...

It doesn’t have to be unjust to have a more harsh punishment... If you use proportionality then it can be look at as just... for example if a person knows he is guilty and declines the plea bargain in hopes that he wont be found guilty then he is wasting the resources of the court and should have a proportionally larger sentence for such actions thus being just in doing so
I hope that helps

Jim Anderson said...

anonymous, as I understand it, Langbein is saying that...

1. Prosecutors threaten punishments that they know the guilty criminal won't receive in a jury trial. (This violates proportionality.)

2. That individually they possess too much unchecked power. (This violates due process.)

Using either argument would depend on the Aff case.

Erics pop said...

Now earic.

Abr said...

Couldn't you say that it actually works more as a reward system in which your sentence is lessened from what it would be if you chose to go to court.

Jim Anderson said...

abr,

I think Langbein would say no, since he thinks the whole setup is coercive. Analogy: if someone threatens to shoot you twice if you don't cooperate, but only once if you cooperate, it would strain morality to say that the second option is a "reward."

Anonymous said...

Following your analogy, it seems as if the government is being put in a spotlight where they are the bad guy.

Jim Anderson said...

anonymous, yep. Langbein is a little down on the government.