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Plea-Bargaining: Abolition of

Should ‘plea bargaining,’ by which people plead guilty to lesser offences in order to get lesser sentences, continue?

All the Yes points:

  1. Plea bargaining is soft on crime. It means people aren’t properly punished for crimes they’ve commi…
  2. In effect, both plea bargaining and discounting violate the accused’s right to a defence, especially…
  3. Plea bargaining and discounting encourage people to plead guilty when they are not. When someone is…
  4. Plea bargaining has developed because trials are so expensive and laws are so complex. In the USA, …
  5. [US-specific] Plea bargaining is unconstitutional. Guaranteed rights like the right not to incrimi…

All the No points:

Plea bargaining is soft on crime. It means people aren’t properly punished for crimes they’ve commi…

Yes because…

Plea bargaining is soft on crime. It means people aren’t properly punished for crimes they’ve committed. The British practice of ‘discounting’ for a guilty plea is also soft on crime. A sentence should be a sentence: the fact that the guilty admit they’re guilty doesn’t change their guilt in any way. Both approaches reward the career criminal who is happy to ‘play the system’ and it results in sentences that are far more lenient than the perpetrators deserve.

No because…

In an ideal world, all cases would be heard in extensive trials – and purists would expect juries of the whole community. But we have to be practical; caseloads are overwhelming and we have to have methods that permit the system to function. We can save ultra-valuable court time by not holding needless trials. But to get people to agree to it, there has to be some incentive to plead, otherwise everyone would ‘give it a go’ no matter how guilty they are. It should be remembered that prosecutors can refuse to enter the plea bargaining process, ensuring that cases ‘go the distance’ for truly appalling crimes. etc.

In effect, both plea bargaining and discounting violate the accused’s right to a defence, especially…

Yes because…

In effect, both plea bargaining and discounting violate the accused’s right to a defence, especially to trial by jury. The state says, the same result – the finding that ‘x is guilty of y’ – will harm x more if he exercises his right to take his case to trial: so he shouldn’t do it. People shouldn’t be afraid of exercising fundamental rights.

No because…

The flip side of the argument that early guilty pleas should be rewarded for the benefit it extends to an overburdened system, is that failure to plead when guilty should be discouraged by harsher penalties. When a court finds you guilty, you are by definition guilty, so everyone punished by that harsher penalty is only getting what they deserve: they should have pleaded. We should remove the incentive for people ‘having a go’ when they’re guilty.

Plea bargaining and discounting encourage people to plead guilty when they are not. When someone is…

Yes because…

Plea bargaining and discounting encourage people to plead guilty when they are not. When someone is faced with the offer of a discounted sentence for a lesser conviction (in a minimum security facility) before trial, compared with the threat of a full sentence (in a hellhole) for a greater conviction post-trial, a comparison put with all the persuasive powers of the state and framed by suited representatives of authority portraying their case as watertight and evoking the frightening unpleasantness of the latter compared to the relative pleasantness of the former, accused people who have done nothing often nevertheless ‘confess’, thinking (perhaps rightly) that they are only saving themselves from much worse consequences if they didn’t do so. As ever, the poorest and the least intellectually equipped are the most easily intimidated and the least likely to have proper representation, so they suffer most in this.

No because…

This is pretty unrealistic. The difference between plea-bargain and trial sentence is not so great that people will willingly opt for the unpleasantness of imprisonment, lifelong stigma, a criminal record, etc. for something they haven’t done. The argument also ignores an important legal principle: that you should never plead guilty to something you haven’t done. It is about more than a pragmatic calculation, separated from right and wrong: it is wrong to lie, and that is always made clear, at every point in the justice system.

Plea bargaining has developed because trials are so expensive and laws are so complex. In the USA, …

Yes because…

Plea bargaining has developed because trials are so expensive and laws are so complex. In the USA, there are 19 plea-bargain resolutions for every case that comes to trial; in effect, 95% of cases are tried under an extra-judicial system, free of all the court protections defendants should have. In the same way that torture developed in medieval England to produce confessions for crimes with very high standards of proof for which convictions could otherwise not be obtained, so too have plea bargains emerged to ensure convictions in cases in which so many legal protections surround the almost-certainly guilty that if the case comes to trial, acquittal might be the result. Its existence is a symptom of a problem in the trial system that should be fixed, rather than a healthy solution to it.

No because…

The comparison with torture is misleadingly popular in the USA – it is obviously unsuitable and deliberately inflammatory. There are indeed problems with trial law – but some of them arise from the need to ensure fair trial, a principle we shouldn’t undermine in order to reduce plea bargaining – under which, let us remember, people freely admit their guilt.

[US-specific] Plea bargaining is unconstitutional. Guaranteed rights like the right not to incrimi…

Yes because…

[US-specific] Plea bargaining is unconstitutional. Guaranteed rights like the right not to incriminate oneself (the famous fifth amendment) do not apply in the plea bargaining process. The right to fair trial (the Sixth) is undermined by the fact that the strength of the state’s case can be exaggerated to the defendant, as court rules on – for example – disclosing the prejudice of witnesses or weaknesses in testimony do not apply to the plea bargaining process. Whilst the Supreme Court very narrowly approved the practice, it was swayed by administrative considerations rather than legal principles and it was wrong to do so.

No because…

[US-specific] The collective guardian of the Constitution – the Supreme Court – has judged plea bargaining to be consistent with it. The 1978 case of Bordenkircher v Hayes shows that ‘there is no element of punishment or retaliation [which are forbidden] so long as the accused is free to accept or reject the prosecution’s offer.’ It is demeaning to capable adults to suggest that they are not capable of understanding the consequences of accepting the contract that is plea bargaining, a contract from which the defendant gains considerable benefits. Look at this the other way: of course the defendant has a right to a fair trial, but why can’t he give up that right in return for benefits? Should the state really force the right upon him, which would be the effect of abolishing plea bargaining and discounts?

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