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Criminal Justice Process - Plea Bargaining

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Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet become the subject of collateral review. Prosecutors refuse to file charges or dismiss charges in a large number of cases. In the cases prosecutors choose to pursue, the majority end not in trial by jury but by a plea of guilty or a successful motion to dismiss. Statistics vary across jurisdictions, but it would not be uncommon for half of all arrests to result either in no charges or in charges that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas, and for the remaining cases to be tried. The government typically wins a significant but not overwhelming majority of criminal trials; a 70 percent conviction rate at trial would not be unusual.

These statistics reflect the ubiquity of plea bargaining. Plea bargaining involves the prosecutor trading a reduction in the seriousness of the charges or the length of the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced charges. Both sides usually have good reasons for settlement. In a case in which the evidence of guilt is overwhelming, the prosecution can avoid the expense and delay of a trial by offering modest concessions to the defendant. When the evidence is less clearcut the government can avoid the risk of an acquittal by agreeing to a plea to a reduced charge. Because the substantive criminal law authorizes a wide range of charges and sentences for typical criminal conduct, and because the procedural law allows prosecutors wide discretion in selecting charges, the prosecution can almost always give the defense a substantial incentive to plead guilty.

A defendant who is sure to be convicted at trial is likely to take any concessions he can get. The weaker the government's case the more concessions the government will be willing to offer. For the most part the trial process comes into play when the two sides disagree about the likely outcome of a trial. Thus it is not surprising to see that in cases that are not dismissed a very large percentage end in guilty pleas but that the results of trials are far less one-sided. If trials resulted in convictions in 90 percent of cases more defendants would accept even minor concessions in exchange for a plea. If 90 percent of trials resulted in acquittals prosecutors would offer better deals or dismiss more cases unilaterally.

Plea bargaining is problematic for at least three reasons. First, because the substantive criminal law typically authorizes draconian penalties (the three strikes laws, for instance) the prosecution has the power to present defendants with unconscionable pressures. Imagine a defendant with two prior convictions charged with petty theft. The prosecutor offers to drop a three-strikes charge if the defendant pleads guilty. The defendant must now choose between the risk of life in prison if convicted at a trial or a very short term or a suspended sentence following a guilty plea. Although the Supreme Court has accepted such pleas as voluntary, they have every appearance of being practically coerced.

Second, the prosecution has the incentive to maximize the benefit of pleading guilty in the weakest cases. The more likely an acquittal at trial the more attractive a guilty plea is to the prosecution. Given caseload pressures prosecutors may simply dismiss the weakest cases. But in a borderline case that does go forward the prosecution may very well threaten the most serious consequences to those defendants who may very well be innocent.

Third, the indigent defense lawyers who represent most felony defendants do not have the resources to independently investigate every case. Prosecutors face acute resource limitations as well, but generally speaking the government can afford to go to trial in more cases than the defense. Moreover, the defense frequently must decide which cases to contest based on the evidence collected by the police rather than on the basis of an independent investigation. Despite these troubling dimensions, plea bargaining is the central feature of the adjudicatory process.

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over 6 years ago

Greetings... here in Phoenix, AZ, Maricopa County, not only are the scales unbalanced to an extreme degree in the prosecution's favor (only 2% criminally charged go to trial), but the prosecution also has the added weapon of Joe Arpaio. He treats the "innocent until proven guilty" so badly in his jails that prisoners will plead guilty to almost anything put before them to get out of the jail and go to prison. People don't have any way of understanding what it's like to be physically and mentally tortured 24 hours a day. Until you have been you can not believe that what's happening here in this day-in-age is still possible in 2011 in the United States of America. And the longer they are allowed to get away with it... the worse it's getting. Here, plea-bargains are salvation regardless of whether or not you're guilty of any crime... you must survive any way you can. They give you but one choice here... plead guilty or suffer.

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about 7 years ago

In Salem Oregon the DA and Defense Attorneys are allowed to manipulate the defendent into believing they have no choice and if they don't take a plea they will be found guilty get the death sentence and then Oregon will soon start executing death row inmates like Texas did. They are allowed to convince the defendent that they cannot speak to family about their case because the DA will use it against them. How do I know this you ask? My brother was coerced into taking a plea for a serious crime he did not commit. He continuously told his defense team he wanted a trial until they convinced him this was a safer and better route. Im not an attorney and after going over the discovery I can honestly say even a bad attorney could have easily argured this case. The DAs factual evidence is full of lies when you compare it to the facts. And the worst part is when you enter a plea your attorneys dont dispute anything. They just allow for people to believe everything to be true. My brothers fight has just begun because they did not count on him having so many people that beleive in him and are fighting for him and will not let the state get away with this injustice. We are the people and we elect and we place people in power and they work for us. Its time people start taking the blinders off and see what is really happening here. Without us there is no end. If people would unite and stand up and speak out only then can we take down corruption. If you dig deep enough you will find truth.

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about 7 years ago

oh that today you may listen to my voice. Harden not your heart. if plea bargaining be seen as a means of reducing the case loads before the prosecutor,where then do we keep the idea that - better free ten guilty persons than convict one innocent person.

though we say the pleas are voluntary, they are technically coercive and leaves the innocent defendant with littel or no choice.

we must do something about this problem.

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over 8 years ago

But what if an accused knows that they didn't do the crime that they r willing to take it to a jury trial. What happens than. Also isn't a plea bargain where the prosecutor don't have enough of evidence to prove that a person acutally didn't do the crime. And also what happens to the case in questioning.

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almost 7 years ago

My name is Ayo Aguda, I am a masters student at the University of Surrey. I am currently writing a thesis on the impact of plea-bargain actions in corruption cases and the fight against corruption

I came across your website during my research, and would very much appreciate your personal and professional opinion on the use of plea bargaining both by Corrupt politicians, public officials and Multinational corporations in the private sector.

I am already looking at the BAE Systems, Innospec, Mabey and Johnson cases, if there are any other significant Corruption cases that deal specifically with plea bargaining.

Any help you can give on the matter as soon as possible would be greatly appreciated.

Thank you in advance


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over 7 years ago

I am not in law school or anything like that .
I am trying to help my son who was
coerced in taking a plea in a case that he is innocent . and all of the court paper show this.
so I am looking at ways to clear his name and felony taken off of him.

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over 7 years ago

This is so true! My ex-husband is involved in a case where the evidence shows that he is innocent but the prosecutor wants him to plea. Although he is innocent, he is very tempted because he does not want to risk going to prison. I am encouraging him to go all the way to trial!

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almost 8 years ago

In response to you I say that if a person is not guilty, they should plea not guilty.But the prosecuting attorney is trying to make somebody a profit at your expense, and so they will threaten the defendant ( the accused ) with ridiculous punishment, they will remind you of how costly , and lengthy the process of a fair trial is. They will convince one that it is just quicker and easier to plea guilty to something just to get it over with. And what if a person is guilty and not punished to the extent that they should be?