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.