Plea Bargain Defense Strategy

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Running Head: PLEA BARGAINING STRATEGY 1

Plea Bargaining Strategy

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PLEA BARGAINING STRATEGY 2

Plea Bargaining Strategy

Introduction

Plea bargaining has grown into the most significant practice in the criminal justice

system. It involves the suspect’s admission of guilt in return for a reduced sentence. In the

United States, state-level cases that involve plea bargaining have reached approximately 94%

while those at a federal level stand at 97% (Yoffe, 2017). Evidently, the use of the plea

bargain has become the most popular approach to the administration of justice. However, this

situation leads to substantial and consequential questions on the efficacy of the plea

bargaining approach. Typically, the admission of guilt is supposed to serve as an efficient

way to manage the case workloads among prosecutors. However, the question or moral

dilemma emerges with the appropriation of the plea bargaining strategy in a system where

prosecutors hold the discretion on the matter. After all, the misuse of this discretion can

undermine the effectiveness of the criminal justice system.

Therefore, a discussion on the zealousness of the public defense attorneys is essential

in a bid to ascertain whether the approach is feasible in the current criminal justice system in

America. Therefore, the goal of the research is to determine whether the plea bargaining

approach is an effective defense strategy for defendants through a review of relevant and

authoritative literature. Nevertheless, it is possible to take on the position for the use of plea

bargaining as it serves the goals of the parties involved under certain conditions such as

adequate representation.

Literature review

The role of public defense attorneys is invaluable to the defendant. According to

Costello (2014), the constitution requires that defendants receive a defense attorney if they

are in a position of failure to afford one. According to the author, this situation is referred to

as indigent representation where a defendant is a person with minimal financial means.


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According to the author, the constitution conferred equal opportunity to legal representation

based on the quality and due process clauses in the constitution. However, the author also

identifies the role of Gideon v. Wainwright in developing a system for indigent

representation. The author also addresses the development of indigent representation since

Gideon. In this assessment, the author claims that the approach has remained inadequate.

According to Costello (2014), public defense attorneys for the indigent are often

underprepared and overworked professionals incapable of mounting an adequate defense for

all their clients. As such, this failure often leads to inadequate representation of defendants

who deserve equal and zealous representation in a court of law. More often than not,

budgetary constraints and low standards for adequate representation lead to a loss of

effectiveness of the criminal justice system. Costello claims that the low standards applied for

public defense attorneys and other professionals in the justice system regarding indigent

representation are to blame for the inadequacies that plague the system. As such, the author

paints a grim picture of an insufficient and ineffective indigent representation framework that

is in a desperate need for reform.

Rakoff (2017) takes an in-depth look into prosecutorial discretion and the plea

bargain. According to the author, the current criminal justice system in America has actively

shifted the role of sentencing from the court of law to the prosecutor’s office. According to

the article, the American System actively encourages the discretion of these prosecutors by

allowing them to negotiate plea deals. This immense power that prosecutor’s hold is not only

a challenge to potential defenders; it also threatens the integrity and effectiveness of the

criminal justice system. Rakoff’s (2017) discussion centers on the plea bargain as an

expansion of the prosecutor’s role in a bid to increase the efficiency of the system. However,

the plea bargaining approach failed to realize these benefits and instead contributed to

massive challenges to the nation such as mass incarceration. Furthermore, a national


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intensification on the fight against crime in the second half of the 20th century contributed to

stringent laws with even stricter jail terms. The precise nature of these imposed jail terms

relative to the intensity of the crime contributed to a system where defendants are usually

compelled into accepting guilt over a crime irrespective of whether they are the actual

offenders. After all, the mandatory sentencing terms are often scary to defendants who often

opt for the certainty of a short sentence and a plea deal rather than the uncertainty of going to

trial. As such, the plea deal is entangled into increasing prosecutorial discretion in the United

States.

Mackenzie et al. (2015) use their article to develop a model for plea bargaining where

it serves its intended purposes adequately. The authors focused on one advantage of plea

bargaining in particular, which involves the reduction of the severity of the crime and

sentence. Defendants choose the plea bargain because it offers a reprieve from the severe

punishment that the trial would impose on them. Therefore, a defendant perspective favors

the plea bargaining when it serves to reduce the potential sentences that would follow a

judges or jury’s decision. The authors develop a perception of plea bargaining as a

constructive negotiation process where prosecutors and indigent attorneys engage in a

dialogic process to develop the best alternative to negotiation for the defendant. According to

the authors, the plea bargaining process involves a system of compromises and trade-offs. For

instance, each party has to make concessions on the expected outcome of the trial process.

Therefore, prosecutors will be willing to reduce the charges and sentence imposed on the

defendant in the legislative recommendations in exchange for a guilty plea. The defendant is

in a position to serve a shorter time for the offense committed while the prosecutor can secure

a guilty plea with certainty. As such, the plea bargaining process is intended to be beneficial

to all parties involved underscoring its importance to the defendant.


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A prosecutor’s perspective of the plea bargain is based primarily on a need to obtain a

guilty plea despite the resource constraints that plague such offices. Yang (2016) helps

expand this perception using a resource-based view of the American criminal justice system.

According to the author, the system is plagued with severe resource constraints including

funds and staff members. This article adopts the resource-based view to understanding the

implication of staff vacancies on the utilization of plea deals in the United States. The article

claims that a significant rise in the number of plea deals that prosecutors make occur during a

period of shortage of judges. Judges are integral professionals in the criminal justice system

whose discretion and oversight ensures the integrity and effectiveness of the processes

involved. However, massive caseloads imposed on judges already lead to an environment

where plea bargaining is prevalent. However, any shortages contribute to an escalation of the

use of plea deals in lieu of the trial procedures as a way of managing resources strategically

in the absence of judges. The understaffed judicial system contributes to increased plea deals

and fewer incarcerations, which are a positive development for the institution. Furthermore,

the use of plea deals in times of resource scarcity also contributes to lower costs of

administration, as the fewer case goes to trial and even fewer defendants go to prison.

Joy and Uphoff (2014) argue against the use of the plea bargaining approach among

criminal defense attorneys, particular those who offer indigent representation. According to

the authors, the need to develop a cost-efficient system despite significant resource deficits

has contributed to a prevalence of inadequate representation of indigent defendants. The

rationale behind this ideation is presented in the article as detrimental to the welfare of the

defendant. A majority of public defenders in underfunded jurisdictions are often

overwhelmed or underqualified, a situation that contributes to inadequate representation.

Typical interactions between the defendant and the attorney involve meeting and bargaining

for a plea deal. As such, the authors suggest that the public attorneys fail to offer sufficient
PLEA BARGAINING STRATEGY 6

scrutiny to cases and instead, opt for plea bargaining as a cheap and fast way to administer

justice. However, the authors indicate the risk of limited investigation and preparation of all

the facts relevant to the case. Therefore, even a plea bargaining situation can lead to wrongful

admission of guilt as the attorney lacks sufficient preparation to negotiate effectively with the

prosecutor. Instead, the attorney is more likely to accept the prosecutor’s terms at the

detriment of the defendant.

Bibas (2017) echoes this statement by claiming that the use of plea deals has marked a

departure from the values of the criminal justice system in the United States. According to the

author, the values of the system arose from a popular morality, where defendants would

undergo due process and receive adjudication from a jury of their peers. However, the

concept of plea bargaining limits the access of defendants to this system of justice. Instead, it

relegates sentencing decisions to the prosecutor whose discretion negates the concept of

popular morality. Bibas (2017) provides a balanced assessment of plea bargaining. Despite

the critique concerning a departure from popular morality, Bibas acknowledges the value of

bureaucratic processes in the criminal justice system of reducing uncertainty in the process

and increasing efficiency. Nevertheless, the author develops a coherent criticism of plea

bargaining as a loss of the democratic roots of the system and returning the power to the

people in a manner that promotes transparency in the provision of justice.

Conclusion

In summation, the plea bargaining approach is a complex issue with upsides and

downsides. Public defenders can be well-placed to adopt the strategy based on its advantages

to their client and the criminal justice system. It helps limit the severity of charges imposed

on a defendant and also works towards increasing efficiency in the prosecution of suspects.

However, the interest of efficiency often comes at a cost to the defendant and the integrity of

the system. Indigent defenders may face inadequate representation in the form of limited
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investigation and a predisposed bias to take a plea deal. After all, the public attorneys are

overworked and doing so works to the advantage of both the lawyers and the prosecution

with little regard for the defendant. Furthermore, it has perverted the popular and democratic

processes upon which the criminal justice system was developed. Therefore, defendants have

reduced probability of receiving a publicly acceptable trial outcome. Overall, defendants

would be advantaged in using plea bargaining. However, they need to use competent public

defense attorneys capable of providing adequate representation.


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References

Costello, M. A. (2014). Fulfilling the unfulfilled promise of Gideon: Litigation as a viable

strategic tool. Iowa Law Review, 99(5), 1951-1978.

Rakoff, J. S. (2017). Why Prosecutors Rule the Criminal Justice System—And What Can Be

Done About It. North-western University Law Review, 111(6), 1429-1436.

Mackenzie, G., Vincent, A., & Zeleznikow, J. (2015). Negotiating about charges and pleas:

Balancing interests and justice. Group Decision and Negotiation, 24(4), 577-594.

Yang, C. S. (2016). Resource constraints and the criminal justice system: Evidence from

judicial vacancies. American Economic Journal of Economic Policy, 8(4), 289-332.

Joy, P. A., & Uphoff, R. J. (2014). Systemic barriers to effective assistance of counsel in plea

bargaining. Iowa Law Review, 99(5), 2103-2130.

Bibas, S. (2017). Restoring Democratic Moral Judgment Within Bureaucratic Criminal

Justice. North-western University Law Review, 111(6), 1677-1692.

Yoffe, E. (2017). Innocence Is Irrelevant. Retrieved from

https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/

534171/

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