DebateDrsJanFeb18LDBrief Updated

January-February 2018 L-D resolution:
Resolved: Plea bargaining ought to be abolished in the

United States criminal justice system.
Resolved: Plea bargaining ought to be abolished in the United States criminal
justice system.
Contents
EXAMINING THE RESOLUTION............................................................................................... 5
Affirmative Strategy ........................................................................................................... 5
Negative Strategy ................................................................................................................ 6
AFFIRMATIVE CASE 1: OVERVIEW ........................................................................................ 9
AFFIRMATIVE CASE: Constitutional protections .................................................................... 10
CONTENTION 1: THE PLEA BARGAINING PUNISHES THOSE WHO EXERCISE
THEIR CONSTITUTIONAL RIGHT TO TRIAL BY JURY. ................................................ 10
CONTENTION 2: PROSECUTORS WILL GO TO ANY LENGTH TO WIN. ................... 10
CONTENTION 3: PLEA BARGAINING DOES NOT SERVE JUSTICE. .......................... 11
AFFIRMATIVE CASE 2: OVERVIEW ...................................................................................... 13
AFFIRMATIVE CASE: JUSTICE UNDER THE LAW ............................................................. 14
CONTENTION 1: PLEA BARGAINING IS KILLING THE CONSTITUTIONAL RIGHT
OF TRIAL BY JURY cont. ...................................................................................................... 14
CONTENTION2: PLEA BARGAINS ARE OFTEN COERCED ........................................... 14
CONTENTION 3: PLEA BARGAINS DO NOT RESULT IN LESSER SENTENCES ........ 15
CONTENTION 4: PLEA BARGAINING DOES NOT SERVE THE VICTIM ..................... 15
AFFIRMATIVE EVIDENCE ....................................................................................................... 17
WHAT IS PLEA BARGAINING ............................................................................................. 18
UNITED STATES V. JACKSON (1968) ................................................................................ 19
United States v. Jackson ....................................................................................................... 19
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF CONNECTICUT ........................................................................................................ 19
UNITED STATES V. JACKSON (1968) NEVER REFUTED ............................................... 20
PLEA BARGAINING LEADS TO BAD LAWYERING ....................................................... 21
PLEA BARGAINING CAUSES INCONSISTENCY IN SENTENCING .............................. 22
TOUGHER SENTENCING PASSED BY CONGRESS MAKES PLEA BARGAINS LESS
HUMANE ................................................................................................................................. 23
PLEA BARGAINING DEPRIVES CITIZENS OF CONSTITUTIONAL RIGHT TO TRIAL
................................................................................................................................................... 24
SUPREME COURT UPHELD PLEA BARGAINING FOR CONVENIENCE NOT
CONSTITUTIONALITY ......................................................................................................... 25
PLEA BARGAINING IS KILLING THE CONSTITUTIONAL RIGHT OF TRIAL BY
JURY......................................................................................................................................... 26
DEBATE DOCTORS 2017 1 PLEA BARGAINING

justice system.
PLEA BARGAINING IS KILLING THE CONSTITUTIONAL RIGHT OF TRIAL BY

JURY cont................................................................................................................................. 27
PROSECUTORS ADMIT PUNISHING PEOPLE FOR USING THEIR CONSTITUTIONAL
RIGHTS .................................................................................................................................... 28
PLEA BARGAINING GIVES PROSECUTORS TOO MUCH POWER ............................... 29
SOUTH CAROLINA PROSECUTORS ARE THE WORST.................................................. 30
DEFENSE LAWYERS SHOULD BE ABLE TO OFFER INCENTIVES FOR TESTIMONY
................................................................................................................................................... 33
PLEA BARGAINS DO NOT RESULT IN LESSER SENTENCES ....................................... 34
PLEA BARGAINS ARE NOT NEGOTIATIONS .................................................................. 35
SCREENING AVOIDS PLEA BARGAINING ....................................................................... 36
SCREENING AVOIDS PLEA BARGAINING ....................................................................... 37
PLEA BARGAINING REDUCES THE ROLE OF THE JUDGE .......................................... 38
SHORT TRIALS PROMOTE THE ADVERSARIAL SYSTEM............................................ 39
PLEA BARGAINING IS DISHONEST .................................................................................. 40
BANNING PLEA BARGAINING DOES NOT INCREASE BACKLOG ............................. 41
PLEA BARGAINS ARE COERCED ...................................................................................... 42
PLEA BARGAINING DOES NOT ALLOW PROPORTIONAL PUNISHMENT ................ 43
UNITED STATES V. JACKSON NEVER OVERRULED..................................................... 44
DEFENDANT PUNISHED FOR TESTIFYING IN HIS OWN BEHALF ............................. 45
PLEA BARGAINING DOES NOT MEET THE CLASSIC IDEA OF CRIMINAL JUSTICE
................................................................................................................................................... 46
................................................................................................................................................... 47
................................................................................................................................................... 48
PLEA BARGAINING IS RACE BIASED............................................................................... 49
PLEA BARGAINING DOES NOT SERVE THE VICTIM .................................................... 50
NEGATIVE CASE 1: OVERVIEW ............................................................................................. 51
NEGATIVE CASE 1: JUSTICE .................................................................................................. 52
CONTENTION 1: IF INNOCENT PEOPLE CAN’T GET A FAIR TRIAL IT IS THE
SYSTEM’S FAULT ................................................................................................................. 52

justice system.
CONTENTION 2: PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL

JUSTICE NOT PLEA BARGAINS ......................................................................................... 53
CONTENTION 3: PLEA BARGAINING IS THE CRIMINAL PROCESS .......................... 53
NEGATIVE CASE 2: OVERVIEW ............................................................................................. 54
NEGATIVE CASE: System of Law ............................................................................................. 55
95% OF ALL CONVICTIONS INVOLVES PLEA BARGAINING ...................................... 55
ABOLISHING PLEA BARGAINING WILL CRIPPLE THE LEGAL SYSTEM ................. 55
NEGATIVE EVIDENCE ............................................................................................................. 57
ABOLISHING PLEA BARGAINING WILL CRIPPLE THE LEGAL SYSTEM ................. 60
THE RIDICULOUS NUMBER OF MINOR LAWS HAVE MULTIPLIED THE NUMBER
OF DEFENDANTS IN THE COURT SYSTEMS ................................................................... 62
BETTER PROTECTION FOR PLEA BARGAINERS ARE NEEDED ................................. 63
SUPREME COURT REQUIRES EFFECTIVE LEGAL COUNCIL TO UPHOLD PLEA
BARGAINS .............................................................................................................................. 64
THE REAL NEED IS FOR REFORM OF THE CRIMINAL CODE ..................................... 65
TRUMP MAKES THE SITUATION WORSE........................................................................ 66
TRIAL BY JURY IS NOT JUST ............................................................................................. 67
PLEA BARGAINING IS NOT KILLING TRIAL BY JURY ................................................. 68
PLEA BARGAINING IS MORE EFFICIENT ........................................................................ 69
SHORT TRIALS ARE NOT THE ANSWER.......................................................................... 70
BANNING PLEA BARGAINING REDUCES THE NUMBER OF CASES PROSECUTORS
AGREE TO PROSECUTE ....................................................................................................... 71
BANNING PLEA BARGAINING REDUCES THE NUMBER OF CASES PROSECUTORS
AGREE TO PROSECUTE ....................................................................................................... 72
PUNISHING UNREPENTANT DEFENDANTS IS APPROPRIATE ................................... 73
PLEA BARGAINING IS NOT UNCONSTITUTIONAL ....................................................... 74
PLEA BARGAINING IS NOT UNCONSTITUTIONAL cont. .............................................. 75
IF INNOCENT PEOPLE CAN’T GET A FAIR TRIAL IT IS THE SYSTEM’S FAULT ..... 78
PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL JUSTICE NOT PLEA
BARGAINS .............................................................................................................................. 79

justice system.
PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL JUSTICE NOT PLEA

BARGAINS .............................................................................................................................. 80
PLEA BARGAIN IS THE CRIMINAL PROCESS ................................................................ 81

justice system.
EXAMINING THE RESOLUTION

Edward Lee, PhD
There is a foundational problem with the criminal justice system in America: Congress
can pass laws quicker than law enforcement can enforce them. This is what has happened, and it
has caused (in simplistic terms) the problem which this resolution addresses. What do we do
with the process known as the “plea bargain”?
One might try to demonstrate that it is not the plea bargain but rather the tremendous
amount of crime in our country that causes courts to be backed up. However, many of the
crimes, such as drug crimes are a problem because law enforcement is so busy arresting users
that they seldom get the suppliers.
Proponents of plea bargaining contend that it saves time and tax payer dollars. It allows
prosecutors to consider exceptional circumstances when a defendant’s crime does not deserve the
penalties required by law if a jury finds them guilty. And, the most often cited reason for
keeping plea bargaining is that if all criminal cases went to trial, the courts would be backed up
for years. There would be no such thing as speedy trial. Those who could not afford bail would
sit in jail for years waiting to be tried whether they were guilty or not.
Opponents to the plea bargaining will argue that it lets prosecutors shirk their
responsibility to fully investigate and try a case. The idea of a plea bargain is antithetical to what
the justice system should be. By its very nature the plea bargain allows a criminal to avoid the
full penalty of the law and server a lesser punishment. Why should this be allowed.
Additionally, just because the courts are backed up is no excuse to refuse to carry out justice.
More courts should be built, and more judges and prosecutors should be hired. There is no good
excuse for letting criminals go free.
Affirmative Strategy
Let us begin by looking at what the resolution is saying. The resolution asserts that plea
bargaining should be abolished. It leaves no room for equivocation. Affirmative wants it
justice system.
removed as an option for prosecutors. The Aff side will want to argue that the criminal justice
system should seek to discover the truth of innocence or guilt in a criminal situation. It is the
duty of the system, the Aff will argue, that both victim and accused receive their constitutionally
guaranteed rights. Aff can contend that this is violated by the act of plea bargaining in at least
two ways. First, the use of plea bargaining by prosecutors involves deception and intimidation.
In fact, the courts have ruled and then explained away and ignored those rulings that intimidation
such as threatening to punish the accused with the maximum sentence, if the accused who
chooses to stand trial, is in a real sense taking away the right to choose a trial.
Second, if the person is guilty and they plea bargain to get a reduced sentence, the victims
of the crime are not served. The punishment does not fit the crime because the proscribed
punishment for the crime is not meted out. Therefore, the retributive function of the criminal
justice system is not functioning in this case either.
Evidence in this brief demonstrates that actually going to trial does not necessarily
increase the time it takes to resolve a case. There is no reason that the Constitution and its call
for a trial by a jury of one’s peers should be ignored. There is a great hypocrisy in a system
wherein winning is more important than discovering the truth in a criminal case. Yet prosecutors
are so caught up in winning that they find ways of coercing guilty pleas from even innocent
persons with the threat of extra time in prison. If the tool of plea bargaining was not available to
the prosecutor, it could not be used. The existence of plea bargaining fundamentally undermines
the purpose of the criminal justice system which is to identify the correct guilty person and to
mete out the appropriate punishment. If enough evidence is not available to convict a person,
then that person should be acquitted. If there is enough evidence to convict the person, then they
should not be allowed to receive a lesser punishment just because they saved the prosecutor and
the judge some work. In fact, in allowing this route around having prosecutors and judges carry
out their job, the criminal justice system is degraded and ineffective.
Negative Strategy
Neg can approach this from two different directions. One tactic is to go head to head
with Aff and contend that plea bargaining is beneficial to the criminal justice system. The

justice system.
second approach is to argue that plea bargaining is indeed sometimes misused, but it is not plea
bargaining itself that undermines the system but rather those who misuse it.
In going head to head with the Aff side, the Neg will contend that plea bargaining is
beneficial to the system. First, it allows more cases to be resolved. Evidence shows that if plea
bargaining was done away with, prosecutors would only prosecute those cases that had a high
probability of conviction. All others would be ignored. Plea bargaining allows the state the
ability to punish criminals when they might not otherwise be able to. Plea bargaining is an
important tool in the successful criminal system.
However, Neg might be able to take a good bit of the “wind from the sail” of the Aff side
by attacking the logic of the proposition. To say that the prosecutorial tool of plea bargaining
should be abolished without exception misses the real problem. The problem is not with plea
bargaining which can be an important tool for reaching justice for victims, but rather the problem
is with overzealous prosecutors who lie and deprive the accused of their constitutional rights. An
example will illustrate this point. If a person takes up a hammer and uses it to build a house, the
tool – the hammer has been used correctly and in a proper manner. However, if that same
hammer is taken up by a person and that person used the hammer to bash in the skull of another
person, it is not the hammer that has caused the crime but rather the person using the tool. In like
fashion it is not the tool of plea bargaining that is undermining the criminal justice system but
rather, the prosecutors who misuse it. The prosecutor that withholds information that might cast
doubt on their case and forces a plea from an innocent person is the problem not the plea
bargaining option. It is difficult for Aff to deny this because nearly all the evidence they will use
will be about the way in which prosecutors have used the plea bargain. The argument that the
Aff side will use will likely have as its logical core the use of the plea bargain and not the plea
bargain itself. And here is where this approach gets the Aff side. They will need to explain how
absent the misconduct of the prosecutors, the plea bargain itself is harmful to the system. This is
difficult in light of what has already been said of the ability of prosecutors to punish criminals
who might otherwise go free and how plea bargaining offers closure to victims of crime.

justice system.
Aff will want to argue the existence of the plea bargain is what brings about the misuse.
If the plea bargain was not allowed, it would not be misused and thus it could not undermine the
criminal justice system.
The Neg has a lot of leeway in approaching the negation of this resolution. Neg should
make Aff defend the logic of a case demonstrating how prosecutors misuse the plea bargain. If
Neg can place the blame on the prosecutors and the judges that allow them, the debate should go
Negative.
Good luck in the new year!

justice system.
AFFIRMATIVE CASE 1: OVERVIEW
In the United States, it should not be the norm that a person is punished for insisting on
Constitutional protections. However, as the evidence shows, prosecutors often punish suspects
by trying them for the most serious charges possible. This is despite the fact that the plea
bargain would have been for a lesser offense. This is wrong on at least on two levels. First, no
American should be punished for insisting upon their Constitutional rights. Such action destroys
the very foundation of our society.
Second, if the crime is so grievous that the harsher judgement is called for, the idea of plea
bargaining it away does not serve justice. It does not provide justice for the victims of the crime
and it is contrary to the idea that all laws are administered impartially. If a person is guilty, they
should serve the maximum punishment for the crime and not be given a lighter sentence just
because it is more convenient for the prosecutors and the lawyers.

justice system.
AFFIRMATIVE CASE: CONSTITUTIONAL

PROTECTIONS
I am resolved that: Plea bargaining ought to be abolished in the United States criminal justice
system.
The value for the debate should be Constitutional protections
The criterion for judging this debate should be freedom to exercise constitutional rights
without punishment
CONTENTION 1: THE PLEA BARGAINING PUNISHES

THOSE WHO EXERCISE THEIR CONSTITUTIONAL RIGHT
TO TRIAL BY JURY.
Givelber, D. (Fall 2000). Punishing protestations of innocence: denying responsibility and its
consequences. American Criminal Law Review. , 37, 4. p.1363 [Daniel Givelber, Professor of
Law, Northeastern University School of Law]]
explains:
Forcing an accused to choose between immediate freedom in return for a guilty plea and
continued incarceration in return for a claim of innocence seems perverse. We claim to value the
protection of the innocent ahead of the conviction of the guilty, yet the opposite dynamic appears
to be at work in the vignette quoted above, a vignette repeated each time the defendant is offered
"time served" in return for a plea. The road to freedom is a guilty plea, whereas insisting upon
innocence means that incarceration continues. The contradiction resolves if we know that the
client, Santiago, is really guilty but just needs to be prodded into admitting it. Then it is his
irrational unwillingness to acknowledge responsibility rather than his principled insistence upon
innocence which keeps him in jail. Of course, if we do not know that Santiago is guilty, then we
confront the disturbing possibility that he is being threatened with additional punishment
precisely because he is both innocent and naive or stubborn or principled enough to insist upon a
trial to establish that fact
When one thinks of the criminal justice system one thinks of a system whereby honorable people
join together to ensure that what is right prevails. However, with plea bargaining we find that it
is not what is right that matter but rather how easy it is for the prosecutor to gain a conviction.
CONTENTION 2: PROSECUTORS WILL GO TO ANY

LENGTH TO WIN.

justice system.
Lynch, T. (Fall 2003). The case againts plea bargaining: government should not retaliate against
individuals who exercise their right to trial by jury. Regulation. , 26, 3. p.24 [Timothy Lynch is
director of the Cato Institute's Project on Criminal Justice,]]
from 2003:
On appeal, Hayes argued that the prosecutor violated the Constitution by threatening to punish
him for simply invoking his right to a trial. In response, the government freely admitted that the
only reason a new indictment was filed against Hayes was to deter him from exercising that
right. Because the indictment was supported by the evidence, the government maintained that the
prosecutor had done nothing improper. The case ultimately reached the U.S. Supreme Court for a
resolution. In a landmark 5-4 ruling, Bordenkircher v. Hayes, the Court approved the
prosecutor's handling of the case and upheld the draconian sentence of life imprisonment.
Lynch goes on to say:
There is no doubt that government officials deliberately use their power to pressure people who
have been accused of crime, and who are presumed innocent, to confess their guilt and waive
their right to a formal trial. We know this to be true because prosecutors freely admit that this is
what they do.
CONTENTION 3: PLEA BARGAINING DOES NOT SERVE

JUSTICE.
Finally, if the prosecutor does make a deal with a guilty person, then the punishment that person
is given is not as severe as the punishment the criminal deserves. Thus, the victims of the crime
are not served and ultimately society is not served because a criminal knows that they will not
receive the full punishment as long as they plea bargain to a lesser offence. This is wrong.
Wright, R., & Miller, M. (Oct 2002). The screening/bargaining tradeoff. Stanford Law Review.
, 55, 1. p.29
The public in general, and victims in particular, lose faith in a system where the primary goal is
processing and the secondary goal is justice. The public doubts justice has been done when the
sanction in a negotiated plea case does not match the actual behavior. Defendants and defense
attorneys also consider bargaining for pleas to be dishonest, even when the bargain inures to their
benefit. Defendants develop the cynical belief that they have received some undeserved
favorable treatment because of a skillful defense lawyer or a sloppy or harried prosecutor.
Defense attorneys in systems driven by bargains believe that they must convince most of their
clients--even innocent defendants--to accept lesser punishments to avoid a substantial risk of
much greater punishment.
It is clear that plea bargaining is harmful to the innocent and to the victims of crime. Plea
bargaining destroys Constitutional protections. Anything that erodes the execution of justice

justice system.
like plea bargaining does can only be seen as undermining that system. Thus I have shown that
plea bargaining does harm the criminal justice system and it should be abolished and this is why
I ask of the affirmative vote in this debate.

justice system.
AFFIRMATIVE CASE 2: OVERVIEW
The Constitution allows for a trial in which the guilt or innocence of a defendant is determined
by a jury of our peers. The coercion employed by prosecutors in order to obtain convictions
through plea bargains undermines the protection of the Constitution. The impact of this
undermining is a devalued Constitution and a legal system focused on the advancing the careers
of prosecutors and not on obtaining justice.
There is a second impact here in that those who are guilty are allowed to plead guilty to a lesser
charge or to a lighter sentence. This might save time for the prosecutor and the overworked
defense attorney but provides no relief for those victims seeking justice from the legal system.
This is especially true in cases of murder where a family is left to grieve, and that grief is
compounded by the knowledge that the criminal that took the life of their loved one.
If justice is not provided to either the victim or the accused, how can it be called justice? Plea
bargaining is simply a way for prosecutors and lawyers to take a short cut to the detriment of the
victim, the accused, and the society as a whole.

justice system.
AFFIRMATIVE CASE: JUSTICE UNDER THE LAW
The value for this debate should be justice under the law.
The criterion should be the policy that best serves justice to all involved.
I am resolved that: Plea bargaining ought to be abolished in the United States criminal
justice system.
CONTENTION 1: PLEA BARGAINING IS KILLING THE

CONSTITUTIONAL RIGHT OF TRIAL BY JURY CONT.
Lynch, T. (Fall 2003). The case against plea bargaining: government should not retaliate against
director of the Cato Institute's Project on Criminal Justice,]
Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense
lawyers. But is it proper for a government that is constitutionally required to respect the right to
trial by jury to use its charging and sentencing powers to pressure an individual to waive that
right?
what they do.
CONTENTION2: PLEA BARGAINS ARE OFTEN COERCED

Gorr, M. (Spring 2000). The Morality of Plea Bargaining. Social Theory and Practice. , 26, 1.
p.129 [Michael Gorr Department of Philosophy Illinois State University]
Suppose I am accosted by a robber who informs me that he is going to kill me and take my
money--period. This is an unconditional threat that is like the initial unconditional threat the
prosecutor makes against the defendant, viz., to charge him with the more serious crime--period.
Now suppose that, for whatever reason, the gunman then softens his position and tells me that he
will spare me if I quickly surrender my purse. The question then is: would my choice to
acquiesce be a voluntary one? My intuition--and I think that of most people--is that it would not.
Since the two cases seem analogous except for the fact that the prosecutor, unlike the gunman, is
morally entitled to make his original unconditional proposal, we could avoid a finding of
involuntariness in the plea bargaining case only by granting that voluntariness is also a moralized
concept (in the strong sense discussed earlier). This is the tack that Wertheimer chooses, a fact

justice system.
that is hardly surprising given that he also holds such a view with respect to coercion and agrees
that whether a choice is coerced is directly relevant to the question of whether it is voluntary.
CONTENTION 3: PLEA BARGAINS DO NOT RESULT IN

LESSER SENTENCES
Lynch, G E (April 2003). Screening versus plea bargaining: exactly what are we trading off?. .
Stanford Law Review. , 55, 4. p.1399
This may pose a problem of transparency, and is hard on those few who for whatever reason find
themselves paying retail, but there is no reason to assume that offenders who receive "plea
bargained" dispositions are receiving any lower a sentence or charge of conviction than the
system as a whole regards as appropriate for their case. We are predisposed to regard the
pleading defendant as receiving a discount precisely because a fully litigated jury trial is
theoretically normative, because its outcome therefore has greater legitimacy, and because we
are constitutionally prohibited from recognizing that the system attaches a penalty to going to
trial. Given the extreme severity of sentencing in the United States by world standards, (3)
however, it is hard to take seriously the notion that ninety percent of those serving our
remarkably heavy sentences are the beneficiaries of "bargains."
CONTENTION 4: PLEA BARGAINING DOES NOT SERVE THE

VICTIM
Schmitz, Matthew [February 2013] Unjust Secular Justice: A Review Of The Machinery Of
Criminal Justice. First Things. [https://www.firstthings.com/article/2013/02/unjust-secular-justice]
The popular image of criminal justice is exemplified by the last half of a Law and Order episode:
Wrongdoers are confronted with their crime, victims find vindication, and the community—
represented by public-spirited detectives and attorneys—wrestles with a difficult moral question.
Criminal justice isn’t just about locking up bad guys. It provides opportunities for individuals to
express remorse and forgiveness and for the community to define and redefine its standards and
boundaries.
This has little to nothing to do with criminal justice as it is practiced today. The pervasive use of
plea bargains (95 percent of criminal cases end in a guilty plea) means that very few cases go to
trial. The process gives no opportunity for the kind of moral reckoning, individual or communal,
we associate with criminal justice. Instead, the judge, prosecutor, and defense attorney—all
pressed for time and underfunded—seek speedy outcomes, with little attention offered to the
defendant or victim.

justice system.
The use of the plea bargain should be abolished because as my case points out, it does not
provide justice to the accused or to the victims. A justice system that does not produce justice is
simply a system of failure. And so, I see nothing but an affirmati

justice system.
AFFIRMATIVE EVIDENCE

justice system.
WHAT IS PLEA BARGAINING

If I am correct in this description of the prevailing process, the defining characteristic of the
existing "plea bargaining" system is that it is an informal, administrative, inquisitorial process of
adjudication, internal to the prosecutor's office--in absolute distinction from a model of
adversarial determination of fact and law before a neutral judicial decision maker. (8) Instituting
an aggressive screening procedure may significantly improve that process, but only if it implies
that prosecutors will reach a more accurate and more just decision, rather than automatically
adopting the police view of the appropriate charge or instituting excessive charges in order to
bring pressure on defendants to plead. But it hardly constitutes a radical alternative to plea
bargaining as actually practiced, and in important ways it merely ratifies and entrenches (or at
least, assumes the inevitability of) that practice.

justice system.
UNITED STATES V. JACKSON (1968)

Cornell University Law School. (2010). Legal Information Institute.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0390_0570_ZS.html
UNITED STATES V. JACKSON

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
CONNECTICUT
Argued: December 7, 1967
Decided: April 8, 1968
The Federal Kidnapping Act provides that interstate kidnapers shall be punished (1) by death if
the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so
recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not
imposed.
The District Court dismissed the count of an indictment charging appellees with violating the Act
because it makes "the risk of death" the price for asserting the right to trial by jury, and thus
"impairs . . . free exercise" of that constitutional right. The Government appealed directly to this
Court.
The Supreme Court upheld the District Court. The death penalty clause imposes an
impermissible burden upon the exercise of a constitutional right, but that provision is severable
from the remainder of the Act and the unconstitutionality of that clause does not require the
defeat of the Act as a whole. Pp. 572-591.

justice system.
UNITED STATES V. JACKSON (1968) NEVER REFUTED

Law, Northeastern University School of Law]
The decision has never been formally overruled. It remains on the books, and continues to nag at
the conscience of at least a few federal judges that it is unconstitutional to burden the right to
trial by guaranteeing lesser punishment to those who plead.(6) Many still insist that there is a
difference of constitutional dimension between giving someone a discount for waiving a
constitutional right as opposed to punishing someone for exercising a constitutional right.(7) Or,
at least, that judges, as opposed to prosecutors or legislatures, should not do this.(8) Because
there is a vestigial sense that you are not permitted to actually imprison someone for asking for a
jury trial, there is little acknowledgment that this is exactly what can and does happen.
Trials are costly, particularly to those defendants who actually receive them. The constitutionally
acceptable explanation for why courts can inflict costs upon those who believe what the Sixth
Amendment says originally related to notions of justice, efficiency, and autonomy.(9) The
Burger Court proudly identified a range of benefits flowing to the government, the society at
large, and the accused from guilty pleas.(10) It was thought that a defendant's guilty plea
resulting from a bargain: (a) said something meaningful about the extent to which he should be
punished; (b) permitted the efficient operation of the criminal justice system; and (c) recognized
that the defendant was an autonomous individual capable of evaluating the risks of both
conviction and sentence and of negotiating a deal which he believed maximized his self-interest

justice system.
PLEA BARGAINING LEADS TO BAD LAWYERING

*****The card below is also in the Affirmative evidence under “95% OF ALL CONVICTIONS
INVOLVES PLEA BARGAINING*****
[All Things Considered, 21 Mar. 2012.] "High Court Expands Defendants' Plea Bargain Rights."
National Public Radio.
This is a very practical court. And I think what this is, is a court that says: Look, practically
speaking, plea bargaining is where we need to be policing things. This is for 95-plus percent
defendants. All those defendants have is their lawyer. And if their lawyer is deficient, then these
defendants have nothing.
Professor Weisberg adds that the court has often been infuriated by egregiously bad lawyering.
The court is very worried about the quality of legal representation for poor people. It doesn't
expect it to be very good representation, but it's appalled when it's horrifically bad
representation. And it's sort of saying to the world: Get real. Most of the bad lawyering occurs in
cases that involve plea bargaining because most cases involve plea bargaining.
Yoffie, Emily. [2017] "Innocence is irrelevant." The Atlantic, Sept. 2017, p. 66+.
As prosecutors have accumulated power in recent decades, judges and public defenders have lost
it. To induce defendants to plead, prosecutors often threaten “the trial penalty”: They make it
known that defendants will face more-serious charges and harsher sentences if they take their
case to court and are convicted. About 80 percent of defendants are eligible for court-appointed
attorneys, including overworked public defenders who don’t have the time or resources to even
consider bringing more than a tiny fraction of these cases to trial. The result, one frustrated
Missouri public defender complained a decade ago, is a style of defense that is nothing more
than “meet ’em and greet ’em and plead ’em.”
According to the Prison Policy Initiative, 630,000 people are in jail on any given day, and
443,000 of them—70 percent—are in pretrial detention. Many of these defendants are facing
minor charges that would not mandate further incarceration, but they lack the resources to make
bail and secure their freedom. Some therefore feel compelled to take whatever deal the
prosecutor offers, even if they are innocent.

justice system.
PLEA BARGAINING CAUSES INCONSISTENCY IN

SENTENCING
Liptak, Adam, and Eric Lichtblau [2003]. "New Plea Bargain Limits Could Swamp Courts,
Experts Say." New York Times, 24 Sept. 2003, p. A23.
Mary Beth Buchanan, the United States attorney in Pittsburgh, said the directive was not aimed
at United States attorneys, who are appointed by the president. It is the discretion of line
prosecutors, she said, that should be limited.
''Defendants shouldn't receive different sentences depending on which assistant prosecutor they
happen to get,'' she said.
Thanks in part to plea bargains, millions of Americans have a criminal record; in 2011, the
National Employment Law Project estimated that figure at 65 million. It is a mark that can carry
lifetime consequences for education, employment, and housing. Having a record, even for a
violation that is trivial or specious, means a person can face tougher charges and punishment if
he or she again encounters the criminal-justice system. Plea bargaining has become so coercive
that many innocent people feel they have no option but to plead guilty. “Our system makes it a
rational choice to plead guilty to something you didn’t do,” Maddy deLone, the executive
director of the Innocence Project, told me. The result, according to the late Harvard law professor
William J. Stuntz, who wrote extensively about the history of plea bargains in The Collapse of
American Criminal Justice (2011), is a system that has become “the harshest in the history of
democratic government.”

justice system.
TOUGHER SENTENCING PASSED BY CONGRESS MAKES

PLEA BARGAINS LESS HUMANE
This seemed eminently fair. But crime had already started to increase sharply. The rise provoked
a get-tough response from police, prosecutors, and legislators. As the rate of violent crime
continued to accelerate, fueled in part by the crack epidemic that started in the ’80s, the response
got even tougher. By the 1990s, the U.S. had entered what Donald Dripps calls “a steroid era in
criminal justice,” which continued even though violent crime peaked by 1992 and began its now-
historic decline. In the late 20th century, legislators passed mandatory-minimum-sentence and
“three strikes” laws, which gave prosecutors an effective bludgeon they could use to induce plea
bargains. (Some “three strikes” laws result in life imprisonment for a third felony; hundreds of
people in California received this punishment for shoplifting. California reformed its three-
strikes legislation in 2012 to impose such punishments only for serious or violent felonies.)
The growth of the system took on a life of its own. “No one sets out to create bloated criminal
codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center,
which protects the right to counsel. “But once they exist, vast resources are spent to justify
them.” In response to the crime wave, the United States significantly expanded police forces to
catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate
them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now
on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech
sponsored by the Federalist Society, he asked, “What happens to individual freedom and
equality—and to our very conception of law itself—when the criminal code comes to cover so
many facets of daily life that prosecutors can almost choose their targets with impunity?”

justice system.
PLEA BARGAINING DEPRIVES CITIZENS OF

CONSTITUTIONAL RIGHT TO TRIAL
[New York Times, 23 Mar. 2012] "A broader right to counsel.", p. A28(L).
The right to a jury trial is extolled as a fixture of American justice, but a vast majority of people
charged with crimes never see a trial. Plea bargaining defines the criminal justice system: 97
percent of federal convictions and 94 percent of state convictions come through guilty pleas
negotiated between prosecutors and offenders.

justice system.
SUPREME COURT UPHELD PLEA BARGAINING FOR

CONVENIENCE NOT CONSTITUTIONALITY
Sandefur, T. (Fall 2003). In defense of plea bargaining: the practice is flawed, but not
unconstitutional. Regulation. , 26, 3. p.28 [Timothy Sandefur is the lead attorney of the
Economic Liberties Project at the Pacific Legal Foundation, and a contributing editor of Liberty
magazine.]
Another argument against plea bargaining is that it punishes defendants for invoking their right
to a trial. Consider the landmark case Bordenkircher v. Hayes (1978). The defendant, Paul Lewis
Hayes, was indicted for a relatively minor fraud charge, punishable by a two- to 10-year
sentence. The prosecutor offered Hayes a bargain: If he pled guilty, the prosecutor would seek a
five-year sentence. If not, the prosecutor would indict him under the state's Habitual Criminal
Act. Because he was a repeat offender, conviction under the Act meant a lifetime sentence.
Hayes refused the deal, and the prosecutor got the second indictment. Hayes was tried and
convicted under the Act, and given a life sentence. On appeal to the U.S. Supreme Court, he
argued that the sentence was an unconstitutional punishment for insisting on his right to a jury
trial. The Court ruled against him. In a confusing opinion, it held that so long as the procedure
included no actual coercion, the plea bargain did not amount to punishment. But the Court
frankly appealed to necessity: "The imposition of these difficult choices," the Court wrote, is an
"inevitable attribute of any legitimate system which tolerates and encourages the negotiation of
pleas." The Court thus upheld the practice of plea bargaining solely on pragmatic grounds: "A
rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings
with the defense could only invite unhealthy subterfuge that would drive the practice of plea
bargaining back into the shadows from which it has so recently emerged."
O'Keefe, K. (Wntr 2010). Two wrongs make a wrong: a challenge to plea bargaining and
collateral consequence statutes through their integration. Journal of Criminal Law and
Criminology. , 100, 1. p.243 [Kevin O'Keefe, J.D. Candidate, Northwestern University School of
Law, May 2010; B.A., Harvard College, 2004]
In the modern criminal justice system, adherence to expedience and pragmatism have
contributed to the prevalence of two practices that have questionable constititional bases: plea
bargains and postconviction civil penalties. Each practice has been challenged in the courts
individually and has survived judicial scrutiny. And as these two practices have become more
commonplace, their continued intersection and interaction has become increasingly inevitable;
however, even a superficial analysis of this combination of plea bargaining and postconviction
civil penalties demonstrates that the constitutionality of the two practices can no longer be
justified by an uneasy compromise with practicality.

justice system.
PLEA BARGAINING IS KILLING THE CONSTITUTIONAL

RIGHT OF TRIAL BY JURY
Cristol, H. (Nov-Dec 2002). U.S. jury system on trial: A judge examines the devaluation of jury
trials. (Government). The Futurist. , 36, 6. p.6
Due to increased plea bargaining, only 4.3% of federal criminal charges end in jury verdicts,
down from 10.4% in 1988. And in civil trials, judges are increasingly taking the liberty of
overturning jury recommendations, "giving less weight, that is, to the jury's evaluation of the
evidence," Dwyer says.
Given the Fifth Amendment's prohibition of compelled self-incrimination and the Sixth
Amendment's guarantee of impartial juries, one would think that the administration of criminal
justice in America would be marked by adversarial trials--and yet, the opposite is true. Fewer
than 10 percent of the criminal cases brought by the federal government each year are actually
tried before juries with all of the accompanying procedural safeguards noted above. More than
90 percent of the criminal cases in America are never tried, much less proven, to juries. The
overwhelming majority of individuals who are accused of crime forgo their constitutional rights
and plead guilty.
The rarity of jury trials is not the result of criminals who come into court to relieve a guilty
conscience or save taxpayers the costs of a trial. The truth is that government officials have
deliberately engineered the system to assure that the jury trial system established by the
Constitution is seldom used. And plea bargaining is the primary technique used by the
government to bypass the institutional safeguards in trials.

justice system.
PLEA BARGAINING IS KILLING THE CONSTITUTIONAL

RIGHT OF TRIAL BY JURY CONT.
Plea bargaining unquestionably alleviates the workload of judges, prosecutors, and defense
lawyers. But is it proper for a government that is constitutionally required to respect the right to
trial by jury to use its charging and sentencing powers to pressure an individual to waive that
right?
what they do.
Forcing an accused to choose between immediate freedom in return for a guilty plea and
continued incarceration in return for a claim of innocence seems perverse. We claim to value the
protection of the innocent ahead of the conviction of the guilty, yet the opposite dynamic appears
to be at work in the vignette quoted above, a vignette repeated each time the defendant is offered
"time served" in return for a plea. The road to freedom is a guilty plea, whereas insisting upon
innocence means that incarceration continues. The contradiction resolves if we know that the
client, Santiago, is really guilty but just needs to be prodded into admitting it. Then it is his
irrational unwillingness to acknowledge responsibility rather than his principled insistence upon
innocence which keeps him in jail. Of course, if we do not know that Santiago is guilty, then we
confront the disturbing possibility that he is being threatened with additional punishment
precisely because he is both innocent and naive or stubborn or principled enough to insist upon a
trial to establish that fact
The Futurist (Nov-Dec 2003). Jury trials may disappear in the United States. 37, 6. p.S5
Jury trials may disappear in the United States. Increases both in plea bargaining and in the
overturning of jury decisions by judges are stripping juries of their power, argues the author of In
the Hands of the People. The slow pace, expense, contentiousness, and overcomplicated
procedures of trials are all undermining the jury system's credibility and putting its future at risk.

justice system.
PROSECUTORS ADMIT PUNISHING PEOPLE FOR USING

THEIR CONSTITUTIONAL RIGHTS
Watershed precedent Paul Lewis Hayes, for example, was indicted for attempting to pass a
forged check in the amount of $88.30, an offense that was punishable by a prison term of two to
10 years. The prosecutor offered to recommend a sentence of five years if Hayes would waive
his right to trial and plead guilty to the charge. The prosecutor also made it clear to Hayes that if
he did not plead guilty and "save the court the inconvenience and necessity of a trial," the state
would seek a new indictment from a grand jury under Kentucky's "Habitual Criminal Act."
Under the provisions of that statute, Hayes would face a mandatory sentence of life
imprisonment because of his prior criminal record. Despite the enormous pressure exerted upon
him by the state, Hayes insisted on his right to jury trial. He was subsequently convicted and then
sentenced to life imprisonment.
On appeal, Hayes argued that the prosecutor violated the Constitution by threatening to punish
him for simply invoking his right to a trial. In response, the government freely admitted that the
only reason a new indictment was filed against Hayes was to deter him from exercising that
right. Because the indictment was supported by the evidence, the government maintained that the
prosecutor had done nothing improper. The case ultimately reached the U.S. Supreme Court for a
resolution. In a landmark 5-4 ruling, Bordenkircher v. Hayes, the Court approved the
prosecutor's handling of the case and upheld the draconian sentence of life imprisonment.
what they do.

justice system.
PLEA BARGAINING GIVES PROSECUTORS TOO MUCH

POWER
Ewing, K K (March 2000). Establishing an equal playing field. for criminal defendants in the
aftermath of United States v. Singleton. Duke Law Journal. , 49, 5. p.1371.
A fair and effective criminal justice system is one that affords prosecutors sufficient powers to
obtain criminal convictions while preserving for defendants the rights necessary for a just trial.
Reading a government exception into subsection 201(c)(2), as did the Singleton II court, is not
an adequate resolution of the issue because that interpretation sacrifices the protections the
gratuity statute affords to criminal defendants and expands the powers of federal prosecutors.
Under the Singleton II interpretation, federal prosecutors are not limited by subsection 201(c)(2),
and thus they are not limited in what they may offer potential witnesses to induce them to testify.
This gives federal prosecutors unfair bargaining power over defendants, who are constrained by
subsection 201(c)(2).
The Hayes ruling acknowledged that it would be "patently unconstitutional" for any agent of the
government "to pursue a course of action whose objective is to penalize a person's reliance on his
legal rights." The Court, however, declined to overturn Hayes's sentence because he could have
completely avoided the risk of life imprisonment by admitting his guilt and accepting a prison
term of five years. The constitutional rationale for plea bargaining is that there is "no element of
punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.

justice system.
SOUTH CAROLINA PROSECUTORS ARE THE WORST

Siegel, A M (Fall 2005). Moving down the wedge of injustice: a proposal for a third generation
of wrongful convictions scholarship and advocacy. American Criminal Law Review. , 42, 4.
p.1219 [Andrew M. Siegel, Assistant Professor, University of South Carolina School of Law]
With little effort, prosecutorial docket control can be used to manipulate a plea out of a
defendant who would otherwise exercise her right to trial. If a defendant is incarcerated pending
the resolution of her case, often all the prosecutor needs to do is wait the defendant out by
declining politely to move on her case. A prosecutor who has convinced the defendant that she
may never see the inside of a courtroom has obtained a substantial amount of psychological
control. Some defendants may break and plead guilty against their own interests simply to obtain
resolution. (56) Others may calculate quite rationally that they are likely to get home more
quickly if they plead guilty as charged than if they wait until the prosecutor deigns to call the
case to trial. Furthermore, all defendants are likely to be more receptive to a plea offer if that
carrot is dangled after the prosecutor has demonstrated his willingness to use the stick of docket
control to impose substantial pre-trial punishment. Similarly, defendants who withstand the
initial pressure to plead and actually see their cases rise to the top of the trial docket may
nonetheless find themselves under a new pressure to plead on the eve of trial if the prosecutor
has manipulated the docket so as to catch defense counsel under-prepared or defense witnesses
unavailable or indisposed to help.
The power of the prosecutor to control the criminal court docket has an impact on the quality and
fairness of a defendant's experience with the criminal justice system in many ways that are
virtually invisible to those not versed in the details of South Carolina criminal procedure. One
classic example is the degree to which the vesting of calendar control in a party opponent gives
that party an extraordinary weapon of legal harassment: the power to command the other party's
presence at penalty of incarceration. While the rule that a defendant free on bond must agree to
appear for all properly ordered court appearances while her case is pending is reasonable on its
face, it represents a dangerous temptation for prosecutors vested with docket control.

justice system.

More troubling are situations where the prosecutors' actions are meant to harass defendants into
pleading guilty or to impose punishments on them and their lawyers for invoking the right to
trial. If a defendant is holding fast to a trial demand, prosecutors who control criminal court
dockets can call them in repeatedly without any intention of moving the case, thereby increasing
the personal and professional costs of waiting for trial. Such a move will shift a percentage of
cases into pleas through a combination of calculation and frustration, strip an additional
percentage of cases from the high-priority docket when the defendants do not show and are
bench-warranted, and serve as a warning to lawyers and criminal defendants as to the potential
costs of antagonizing prosecutors.
Even if prosecutorial docket control structures and warps South Carolina's system of criminal
justice to the extent suggested above, one might ask why the wrongful convictions movement
should take notice. After all, in comparison to many of the issues on which the movement has
focused, the legal questions involved are technical, the consequences for innocent defendants are
indirect, and the possibility of attracting significant public attention is, at first blush, remote. (60)
The answer lies in a confluence of factors that I believe are characteristic of the kind of structural
issues that I have discussed in this Essay. First, prosecutorial docket control imposes unfairness
on most, arguably all, defendants who are processed through the South Carolina criminal justice
system. The sheer pervasiveness of its impact maximizes the possible payoff of a reform
campaign, inoculates the campaign against accusations that it is unduly focusing attention on a
handful of anomalous cases, and insures the support of segments of the criminal defense and
civil rights bar more concerned with the overall quality of justice administered by the system
than with the rare factually innocent defendant

justice system.

Second and somewhat paradoxically, prosecutorial docket control has especially deleterious
consequences for factually innocent clients--including long waits in jail before trial,
systematically under-prepared defense counsel, and incentive structures that make it prudent for
many factually innocent clients to enter guilty pleas. These factors make possible a law reform
campaign focusing on the special hell of wading through the South Carolina criminal justice
system as an innocent defendant and the substantial likelihood that a percentage of such
defendants will end up serving substantial jail or prison time for crimes they did not commit.

justice system.
DEFENSE LAWYERS SHOULD BE ABLE TO OFFER

INCENTIVES FOR TESTIMONY
Since federal prosecutors are currently required to disclose the details of the plea agreements that
they offer in exchange for testimony, this new rule would afford defense attorneys the same
opportunity to encourage reluctant witnesses to testify, provided that they, too, met the disclosure
requirements. Of course, a defense attorney, unlike a prosecutor, could not offer leniency or a
reduced sentence in exchange for testimony as could a prosecutor, but the defense attorney could
offer other incentives to witnesses who otherwise might be unwilling to testify. Full disclosure of
consideration paid in exchange for a witness's testimony would leave to the jury the
determination of whether the agreement affected the content of a particular witness's testimony.
Repealing subsection 201(c)(2) and replacing it with this disclosure rule is the only fair answer
to the dichotomous and unsatisfactory interpretations of the federal gratuity statute offered in
Singleton I and Singleton II.

justice system.
PLEA BARGAINS DO NOT RESULT IN LESSER SENTENCES

This may pose a problem of transparency, and is hard on those few who for whatever reason find
themselves paying retail, but there is no reason to assume that offenders who receive "plea
bargained" dispositions are receiving any lower a sentence or charge of conviction than the
system as a whole regards as appropriate for their case. We are predisposed to regard the
pleading defendant as receiving a discount precisely because a fully litigated jury trial is
theoretically normative, because its outcome therefore has greater legitimacy, and because we
are constitutionally prohibited from recognizing that the system attaches a penalty to going to
trial. Given the extreme severity of sentencing in the United States by world standards, (3)
however, it is hard to take seriously the notion that ninety percent of those serving our
remarkably heavy sentences are the beneficiaries of "bargains."

justice system.
PLEA BARGAINS ARE NOT NEGOTIATIONS
Most plea negotiations, in fact, are primarily discussions of the merits of the case, in which
defense attorneys point out legal, evidentiary, or practical weaknesses in the prosecutor's case, or
mitigating circumstances that merit mercy, and argue based on these considerations that the
defendant is entitled to a more lenient disposition than that originally proposed by the
prosecutor's charge. (6) The literature of negotiation suggests, indeed, that most sophisticated
negotiation takes this form.

justice system.
SCREENING AVOIDS PLEA BARGAINING
, 55, 1. p.29
Intense prosecutorial screening may produce a small increase in the number of trials, but the
more substantial change would likely be an increase in the number of "open" pleas--defendants
pleading guilty as charged without any prior negotiated agreement with the prosecutor.
Negotiated pleas are currently the rule; with this fundamental change in practice, they would
become the exception. Open pleas, however, do not necessarily mean that defendants simply
throw their fate to the court's mercy: Defendants may obtain information from judges about a
likely sentence, and in some cases negotiate with judges, and thus retain some voice in their fate.
, 55, 1. p.29
Jurisdictions that implement the screening/bargaining tradeoff will be more honest and more
accessible. In hard screening systems, prosecutors will be less likely to "overcharge" or
"undercharge." The weakest cases exit early, while those remaining should stand up at trial. A
screening-based system should also be more accessible than a system of negotiated pleas,
because the public (especially the victims of alleged crimes) will receive clearer and more
accurate signals about how the system adjudicates and punishes crimes. The charge is declared
publicly from the outset and is easy to evaluate.
, 55, 1. p.29
We know this practice is viable because it is now operating in a few American jurisdictions,
without much controversy and without attracting the attention it deserves. For instance, over the
last three decades New Orleans District Attorney Harry Connick has emphasized early screening
of cases and has actively discouraged any changes of criminal charges as a result of negotiations
after the charges are filed. Furthermore, the office maintains an extraordinary database,
containing detailed information on more than ten years' worth of felony cases. This data allows
us to test whether the District Attorney's policies have any real impact.

justice system.
SCREENING AVOIDS PLEA BARGAINING
, 55, 1. p.29
The implications of the screening/bargaining tradeoff for real world policies and practices are
immense. Every prosecutor in the country should rethink how the office screens cases and how it
explains its practices to the public. Of course, every prosecutor's office invests some resources in
the initial screening of cases. But this study calls on prosecutors to appreciate the link between
screening and negotiated guilty pleas, and to use screening devices with the explicit goal of
lowering the number of plea bargains. Every prosecutor's office should now set targets for the
maximum percentage of negotiated guilty pleas; then it should invest more resources in early
screening until the office achieves those goals. The explicit connection between screening and
plea bargains should be a regular part of a prosecutor's self-assessment and public explanations
for charging and trial decisions.
, 55, 1. p.29
The screening/bargaining tradeoff should also become part of the public, political dialogue about
the justice system, especially at election time. The interesting public question should not be the
"conviction rate," (13) but rather the "as charged conviction rate." This rate could be expressed
as a simple ratio. The higher the ratio of "as charged convictions" to "convictions," the more
readily a prosecutor should be praised and reelected. A ratio near one--where most convictions
are "as charged," whether they result from guilty pleas or trials--is the best sign of a healthy,
honest, and tough system. The lower the ratio of "as charged convictions" to "convictions"
(approaching zero), the more the prosecutor should be criticized for sloppiness, injustice, and
obfuscation. A lower ratio might also reflect a prosecutor's undue leniency.

justice system.
PLEA BARGAINING REDUCES THE ROLE OF THE JUDGE

, 55, 1. p.29
The clearest effect of plea bargains on trial judges is to marginalize them. Judges have little
voice in traditional plea bargains. (27) The parties settle on the charges and agree on the likely or
acceptable sentence that will flow from the facts and charges they plan to present to the judge.
(28) A few judges might keep their sentencing options open and refuse to accept a guilty plea if
the plea agreement includes a "binding" sentence agreement. (29) But in the end, judges have
every reason to listen to the recommendations of the parties and to follow the outlines of their
agreement. In an adversary system, judges reason, the judge has limited justification to upset an
agreement that satisfies both parties. (30) The judge, facing major caseload pressures, has little
incentive to inquire behind the parties' agreement. (31) Indeed, sentencing judges tend to validate
and encourage bargains through a "plea discount" (or a trial penalty): They impose lighter
sentences on those who waive their right to trial. (32)

justice system.
SHORT TRIALS PROMOTE THE ADVERSARIAL SYSTEM
, 55, 1. p.29
Stephen Schulhofer visited the Philadelphia courts and took away a different impression. In his
famous 1984 article, (40) Schulhofer observed a large number of bench trials in the city and
concluded that they were genuinely adversarial proceedings where defendants retained many of
the constitutional protections sacrificed during plea bargaining. Schulhofer called for other
jurisdictions to follow Philadelphia's lead and to treat short trials as a viable alternative to plea
bargaining.

justice system.
PLEA BARGAINING IS DISHONEST
, 55, 1. p.29
The dishonesty and inaccessibility of plea bargaining are two of its least attractive features. Plea
bargaining is dishonest because the offense of conviction does not match either the charges the
state filed or the reality of the offender's behavior. A particularly noxious form of dishonesty is
overcharging by prosecutors--the filing of charges with the expectation that defendants will trade
excess charges for a guilty plea.
, 55, 1. p.29
The public in general, and victims in particular, lose faith in a system where the primary goal is
processing and the secondary goal is justice. The public doubts justice has been done when the
sanction in a negotiated plea case does not match the actual behavior. Defendants and defense
attorneys also consider bargaining for pleas to be dishonest, even when the bargain inures to their
benefit. Defendants develop the cynical belief that they have received some undeserved
favorable treatment because of a skillful defense lawyer or a sloppy or harried prosecutor.
Defense attorneys in systems driven by bargains believe that they must convince most of their
clients--even innocent defendants--to accept lesser punishments to avoid a substantial risk of
much greater punishment.
, 55, 1. p.29
The second strong critique of plea bargains points out that the process is largely inaccessible; it is
not open for review or evaluation. Plea bargaining is inaccessible because bargains are made in
the shadows. Only the final product of each negotiation is reported on paper and in the
courtroom. Negotiations may turn on a huge range of factors going well beyond the elements of
the offense and the strength of the government's evidence. Some of these factors may be
appropriate, others inappropriate, but only the parties themselves ever know the actual factors
that determined the outcome of the public proceeding.

justice system.
BANNING PLEA BARGAINING DOES NOT INCREASE

BACKLOG
For at least a century, the institution of plea bargaining(1) has been a central feature of the
American system of criminal justice.(2) Lawyers and non-lawyers alike have generally assumed
that the reason for this is the enormous size of the case load in relation to the available legal
personnel. However, recent experiments involving the partial or complete abolition of plea
bargaining have cast doubt on the adequacy of this explanation. For example, in an analysis of
Alaska's ban on plea bargaining in the mid-1970s, Rubinstein and White were surprised to find
that [c]ourt processes did not bog down; they accelerated.... [a]lthough the trial rate increased
substantially, the absolute number of trials remained relatively small ... [c]onviction rates did not
change significantly overall ... [and] plea bargaining ... had not been replaced by implicit or
covert forms of the same practice
Such studies, moreover, have not been confined to sparsely populated, rural jurisdictions. In a
review of the stringent restrictions on plea bargaining in Philadelphia's trial court system,
Stephen Schulhofer observed that most defendants there receive bench trials in which "their
cases are resolved in genuinely contested adversary proceedings."
Perhaps the most important factors in explaining why such policies seem to have been relatively
successful are that the majority of defendants continued to plead guilty and that there was an
increase in the efficiency of courts and police.(5) Of course, whether eliminating negotiated
pleas could be expected to produce comparable results across the board is still a matter of debate.
Nevertheless, the evidence provided by these studies surely opens the door to a more serious
discussion of the purely normative dimension of this practice than might otherwise seem
worthwhile; at the very least, proposals to reform plea bargaining can no longer be dismissed on
the grounds that they are demonstrably impractical.

justice system.
PLEA BARGAINS ARE COERCED

Suppose I am accosted by a robber who informs me that he is going to kill me and take my
money--period. This is an unconditional threat that is like the initial unconditional threat the
prosecutor makes against the defendant, viz., to charge him with the more serious crime--period.
Now suppose that, for whatever reason, the gunman then softens his position and tells me that he
will spare me if I quickly surrender my purse. The question then is: would my choice to
acquiesce be a voluntary one? My intuition--and I think that of most people--is that it would not.
Since the two cases seem analogous except for the fact that the prosecutor, unlike the gunman, is
morally entitled to make his original unconditional proposal, we could avoid a finding of
involuntariness in the plea bargaining case only by granting that voluntariness is also a moralized
concept (in the strong sense discussed earlier). This is the tack that Wertheimer chooses, a fact
that is hardly surprising given that he also holds such a view with respect to coercion and agrees
that whether a choice is coerced is directly relevant to the question of whether it is voluntary.
The transparent nature of the treatment of pleas and plea bargaining provides the de facto answer
to Justice Stewart's question of whether a state could double the penalties for those who are
convicted following trial. Society can punish those who seek trial more severely than those who
plead, and can do it precisely because it wants those accused of crimes to plead guilty. The
Federal Sentencing Guidelines provide for different sentences for those who plead guilty and
those who go to trial, and a state legislature should be able to do the same. No federal appellate
court has viewed as unconstitutional the Guideline provisions that create the differential between
those who plead guilty and those who go to trial. It would be surprising if these courts felt
differently if the states did the same thing. United States v. Jackson is no longer the law.

justice system.
PLEA BARGAINING DOES NOT ALLOW PROPORTIONAL

PUNISHMENT
In his critique of plea bargaining, Kipnis has also maintained, quite plausibly, I think, that the
following principle is part of the fundamental framework of the American criminal justice
system:
Those (and only those) individuals who are clearly guilty of certain serious specified
wrongdoings deserve an officially administered punishment which is proportional to their
wrongdoing.(27)
He argues that such a principle can be violated in two different ways. On the one hand there can
be what he terms aberrational injustice, which occurs when, for example, a factually guilty
person is acquitted because there was insufficient evidence against him. Such injustice is
inevitable in any system of criminal law; the best we can do is to take reasonable steps to
minimize its occurrence. The problem posed by plea bargaining, however, is that it is a practice
which by its very nature insures that this principle will be violated since (in most cases at
least(28)) the person who accepts the plea bargain is either factually guilty of the more serious
crime with which he was originally charged or he is innocent of any wrongdoing. If the former,
he will receive a punishment that is substantially less than he deserves, while if the latter, he will
receive a punishment that is substantially greater than he deserves. Either way, the retributive
aims of the criminal law are undermined by what Kipnis calls "systemic" injustice, injustice
which is a standard outcome of the workings of our present system. He argues that injustice of
this form is morally intolerable and warrants a complete ban on the practice of plea bargaining.
One response to this sort of argument is as follows. Given the strong presumption of innocence
within our legal system, it is likely that if all factually guilty defendants were given a trial, a
significant number of them would be acquitted. On the other hand, it is also quite likely that
under plea bargaining, a certain percentage of this latter group would be willing to negotiate a
plea, which at least insures that they will receive some punishment rather than none at all. If this
is the case, one who takes Kipnis's line would have to argue that a system in which (i) some
factually guilty defendants are punished (though not as much as they deserve) and (ii) some
factually innocent defendants are also punished is less desirable, on retributive grounds, than a
system in which the overall conviction rate is lower but (i) more factually guilty persons receive
the full punishment they deserve and (ii) fewer innocent persons are punished but their sentences
are, on average, more severe

justice system.
UNITED STATES V. JACKSON NEVER OVERRULED

The decision has never been formally overruled. It remains on the books, and continues to nag at
the conscience of at least a few federal judges that it is unconstitutional to burden the right to
trial by guaranteeing lesser punishment to those who plead.(6) Many still insist that there is a
difference of constitutional dimension between giving someone a discount for waiving a
constitutional right as opposed to punishing someone for exercising a constitutional right.(7) Or,
at least, that judges, as opposed to prosecutors or legislatures, should not do this.(8) Because
there is a vestigial sense that you are not permitted to actually imprison someone for asking for a
jury trial, there is little acknowledgment that this is exactly what can and does happen.
Trials are costly, particularly to those defendants who actually receive them. The constitutionally
acceptable explanation for why courts can inflict costs upon those who believe what the Sixth
Amendment says originally related to notions of justice, efficiency, and autonomy.(9) The
Burger Court proudly identified a range of benefits flowing to the government, the society at
large, and the accused from guilty pleas.(10) It was thought that a defendant's guilty plea
resulting from a bargain: (a) said something meaningful about the extent to which he should be
punished; (b) permitted the efficient operation of the criminal justice system; and (c) recognized
that the defendant was an autonomous individual capable of evaluating the risks of both
conviction and sentence and of negotiating a deal which he believed maximized his self-interest

justice system.
DEFENDANT PUNISHED FOR TESTIFYING IN HIS OWN

BEHALF
The Guidelines go beyond simply penalizing a defendant for insisting upon a trial: they also
punish those with the temerity to testify on their own behalf. They do so by authorizing trial
judges to find that a defendant's testimony not credited by the jury constitutes an obstruction of
justice.(15) While the trial court is required to find that the elements of perjury are present, the
judge is authorized to do so ex parte on the basis of the defendant's trial testimony and the jury's
disbelief of it. The contrast with the courts' treatment of the Fifth Amendment is instructive:
whereas an accused can stand mute without being penalized for his failure to help resolve the
question of his criminality,(16) the accused who speaks on his own behalf can be punished both
for insisting upon a trial and then for lying to the court.(17) A century and one-half ago an
accused was not permitted to testify in his own defense(18): now an accused is free to do so,
qualified only by the realization that he is subject to additional time in prison if his testimony is
not persuasive.

justice system.
PLEA BARGAINING DOES NOT MEET THE CLASSIC IDEA

OF CRIMINAL JUSTICE
O'Keefe, K. (Wntr 2010). Two wrongs make a wrong: a challenge to plea bargaining and
collateral consequence statutes through their integration. Journal of Criminal Law and
Criminology. , 100, 1. p.243 [Kevin O'Keefe, J.D. Candidate, Northwestern University School of
Law, May 2010; B.A., Harvard College, 2004]
Plea bargaining and collateral consequence statutes are two entirely separate practices, but are
similar in the sense that neither seems to comport with the classic model of criminal justice: a
trial followed by a sentence imposed by the trial court. Additionally, both practices are
ubiquitous in the modern criminal justice system. By way of illustration, in the federal court
system, guilty pleas account for 96% of convictions, (14) and over forty different post-sentence
restrictions automatically apply to individuals convicted of felonies. (15) Accordingly, any
analysis of collateral consequence statutes in the modern criminal justice system needs to be
conducted with an eye toward plea bargaining, and vice versa. And because these individual
practices are so prevalent, the constitutional analyses and theoretical bases of plea bargaining and
collateral consequences should be revisited with emphasis on their integration.

justice system.

OF CRIMINAL JUSTICE
Ember Eyster told me it’s sometimes possible to get misdemeanor cases dismissed with a bit of
investigation. Maybe a trespassing charge doesn’t hold up, for example, because the property
owner hadn’t posted a no trespassing sign. But this takes time, and clients who can’t make bond
have to sit in jail until the job is done. It’s a choice few are willing to make for the small chance
of avoiding a conviction. Many clients tell Eyster as soon as they meet her that they want to
plead guilty and get time served.
The choice makes sense under the circumstances. But anybody who makes it is incurring a debt
to society that’s hard, sometimes impossible, to repay. Those with a conviction in the United
States can be denied public housing, professional licenses, and student loans. Many employers
ask whether job applicants have been convicted of a crime, and in our zero-tolerance, zero-risk
society, it’s rational to avoid those who have.
People with a misdemeanor conviction who get picked up for another minor offense are more
likely to face subsequent conviction—and that, according to Issa Kohler-Hausmann, an associate
professor of law and sociology at Yale, is part of a deliberate strategy. Kohler-Hausmann made
this case in a provocative 2014 Stanford Law Review article, “Managerial Justice and Mass
Misdemeanors,” about the rise of misdemeanor arrests in New York City, which occurred even
as felony arrests fell. Authorities, she argued, tend to pay “little attention” to assessing “guilt in
individual cases.” Instead, they use a policy of “mass misdemeanors” to manage people who live
in “neighborhoods with high crime rates and high minority populations.” These defendants, she
wrote, are moved through the criminal-justice system with little opportunity to make a case for
themselves. They are simply being processed, and the “mode of processing cases” is plea
bargaining. (This year, New York City settled a federal class-action lawsuit against it for issuing
hundreds of thousands of unjustified criminal summonses.)

justice system.

OF CRIMINAL JUSTICE
Critics on the left and the right are coming to agree that our criminal-justice system, now so
reliant on plea bargaining, is broken. Among them is Jed S. Rakoff, a United States district judge
for the Southern District of New York, who wrote about the abuses of plea bargains in 2014, in
The New York Review of Books. “A criminal justice system that is secret and government-
dictated,” he wrote, “ultimately invites abuse and even tyranny.” Some critics even argue that the
practice should be abolished. That’s what Tim Lynch, the former director of the Project on
Criminal Justice at the libertarian Cato Institute, believes. The Framers adopted trials for a
reason, he has argued, and replacing them with plea bargains—for convenience, no less—is
unconstitutional.

justice system.
PLEA BARGAINING IS RACE BIASED

Washington Post, 4 Oct. 2012, "A Fairer Deal for Defendants Who Take a Plea.".
According to an analysis last year from the Justice Department's Bureau of Justice Assistance,
some research on state-level sentencing also suggests that the exercise of prosecutorial discretion
in plea bargaining can result in disparate outcomes of a more troubling nature - across different
regions and across different types of defendants, with black defendants less likely than white
ones to obtain a reduced charge.
Because of plea bargains, the system can quickly handle the criminal cases of millions of
Americans each year, involving everything from petty violations to violent crimes. But plea
bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t
present a danger to society, or whose “crime” may primarily be a matter of suffering from
poverty, mental illness, or addiction. And plea bargains are intrinsically tied up with race, of
course, especially in our era of mass incarceration.

justice system.
PLEA BARGAINING DOES NOT SERVE THE VICTIM
The popular image of criminal justice is exemplified by the last half of a Law and Order episode:
Wrongdoers are confronted with their crime, victims find vindication, and the community—
represented by public-spirited detectives and attorneys—wrestles with a difficult moral question.
Criminal justice isn’t just about locking up bad guys. It provides opportunities for individuals to
express remorse and forgiveness and for the community to define and redefine its standards and
boundaries.
This has little to nothing to do with criminal justice as it is practiced today. The pervasive use of
plea bargains (95 percent of criminal cases end in a guilty plea) means that very few cases go to
trial. The process gives no opportunity for the kind of moral reckoning, individual or communal,
we associate with criminal justice. Instead, the judge, prosecutor, and defense attorney—all
pressed for time and underfunded—seek speedy outcomes, with little attention offered to the
defendant or victim.
Bibas laments how these “guilty-but-not-guilty” pleas rob victims of the closure and public
vindication that is their due. Most crimes are committed not against the state but against
individuals whose interests should not be ignored or dismissed. Guilty-but-not-guilty pleas also
harm the defendant. Just as admitting that you have a problem is the first of twelve steps for
addiction recovery, acknowledging guilt is often a wrongdoer’s first move toward reform.

justice system.
NEGATIVE CASE 1: OVERVIEW
This case argues that the justice system provides times when trial by jury is the best course and
times when plea bargaining is best. Affirmative will be arguing that plea bargains circumvent
justice by forcing innocent people to confess to crimes they did not commit. However, such
arguments miss the mark. It is the prosecutor who is trying to short circuit the system. The
prosecutor or the police or both decide they can pin the crime on a certain person and stop
seeking the truth. It is not the plea bargain but rather the ethics of those who are to protect the
law that are evil. And if plea bargains were not available, these unscrupulous people would find
another way of circumventing the system. The key to resolving the evils affirmative identifies is
to better oversee prosecutors and police.
The first two contention argue that it is not plea bargaining that is the problem but rather the
prosecutors that often misuse it. This violates the well-ordered society. But, so would taking
away the useful tool that plea bargaining is. The better alternative would be to ensure that the
rules around bargaining pleas should be applied equally and that they be well known.
The third contention argues that plea bargains ensure justice and streamline a system that is
overwhelmed in cases. It argues that congress is oblivious to the impact the laws have on the
justice system.
Combining the arguments in the three contentions provides a way of sliding off affirmative
attacks on plea bargaining and allows negative to hold the plea bargain as a useful and just tool.

justice system.
NEGATIVE CASE 1: JUSTICE
I reject the proposition that: Plea bargaining ought to be abolished in the United States
The value for this debate should be Justice
The criterion should be well-ordered society

A well-ordered society is one in which everyone knows the rules and the rules apply to everyone.
Understand that plea bargaining is a tool. Just as a hammer is a tool used to build a house, plea
bargaining is a tool to bring justice into a particular situation. If the tool – be it a hammer or a
plea bargain is misused, it is not the tool that undermines the process, it is the person wielding
the tool. With this reality in mind, my first contention is that:
CONTENTION 1: IF INNOCENT PEOPLE CAN’T GET A FAIR

TRIAL IT IS THE SYSTEM’S FAULT
magazine.] explains:
Lynch makes many valid points in criticizing plea bargaining. Ruiz was wrongly decided; courts
should not give free reign to prosecutors; the criminal justice system should not be manipulated,
or constitutional guarantees watered down, in order to prosecute the war on drugs more
efficiently. But those criticisms surround plea bargaining without quite hitting the target. For
instance, Lynch wrote in his 2002 article, "It is easy for some people to breezily proclaim that
they would never plead guilty to a crime if they were truly innocent, but when one is confronted
with the choice of two years in jail or quite possibly 20 years' imprisonment, the decision is not
so easy." That is true, but note that Lynch assumes that the innocent defendant will be convicted
and sentenced to 20 years. Without that assumption, the hypothetical defendant's risk profile
changes, and surely innocent defendants have reason to believe that they are less likely to be
convicted. If not, then our target should be the trial system, not plea bargaining.
It is the criminal justice system itself wherein prosecutors and judges combine to convict anyone
accused of a crime – not determine the truth – that undermines criminal justice in the United
States. This is my second contention:

justice system.
CONTENTION 2: PROSECUTORIAL MISCONDUCT

UNDERMINES CRIMINAL JUSTICE NOT PLEA BARGAINS
Bibas, S. (Nov 2001). Apprendi and the dynamics of guilty pleas. Stanford Law Review. , 54,
2. p.311 [Stephanos Bibas, Associate Professor, University of Iowa College of Law]] notes in the
Stanford Law Review that:
In summary, I argued that defendants used to be able to get the massive benefits of pleading
guilty while still enjoying enhancement hearings at sentencing. Now that enhancements are
issues for jury trials, defendants cannot gain both benefits. They must either allocute to and
concede these enhancement issues to gain guilty-plea benefits or go to trial on enhancement
issues and forfeit these plea benefits. Professors King and Klein claim that defendants face no
additional pressure to give up hearings under this scheme. But they fail to see how prosecutorial
and judicial behavior reinforce the pressures to plead guilty, making hearings harder to secure for
many defendants.
Finally, let us not forget that the criminal justice system exists so that both sides – defendant and
the state – can be justly served. This means a give and take. It involves a process. And the
purpose of that process is to punish offenders. This brings me to my final contention.
CONTENTION 3: PLEA BARGAINING IS THE CRIMINAL

PROCESS
Wright, R., & Miller, M. (April 2003). Honesty and opacity in charge bargains. Stanford
Law Review. , 55, 4. p.1409 [Ronald Wright is Professor of Law at Wake Forest University
School of Law. Marc Miller is Professor of Law at Emory University School of Law]
In Judge Lynch's view, plea negotiations are the criminal process of adjudication, where defense
attorneys contest facts and evidence and where prosecutors respond with reasoned judgments,
including charge reductions. Bargaining is necessary to allow any meaningful input from defense
attorneys during plea negotiations. Without bargaining, prosecutorial choices go unchallenged
and uninformed by defendants and their lawyers.
Plea bargaining allows prosecutors to send guilty criminals to jail and insuring that they serve
time. Jury trials cannot insure this with certainty. Plea bargaining also allows the accused to
determine the strength of the case against them and choose the path with the least punishment. It
streamlines a legal system burdened by endless laws passed by a congress that does not care
what the impact of their decision have on society. Plea bargaining is a win-win scenario. If it is
misused, do not blame the tool; blame the person using the tool. With that I ask for the negative
ballot in this round.

justice system.
NEGATIVE CASE 2: OVERVIEW
Quite simply, if all plea bargains were done away with today, the U.S. justice system would fall
apart. There would not be enough judges or courtrooms to try all the cases in a timely manner
which the Constitution demands. This would lead to a breakdown of the social structure and
lead to true chaos in every sector of law enforcement and justice. No matter what moral or
fairness issues Affirmative brings up, it cannot be denied that the resolution would simply
disintegrate the legal system.

justice system.
NEGATIVE CASE: SYSTEM OF LAW
I reject the proposition that: Plea bargaining ought to be abolished in the United States
The value for this debate should be the System of Law
The criterion should be maintaining a system that is as just as possible
95% OF ALL CONVICTIONS INVOLVES PLEA BARGAINING

[All Things Considered, 21 Mar. 2012.] "High Court Expands Defendants' Plea Bargain
Rights." National Public Radio.
The reality is that for the most part, criminal justice today is a system of pleas, said Justice
Anthony Kennedy on behalf of the court majority. Ninety-five percent of all convictions are the
result of a plea bargain, not a trial, and the right to adequate assistance of counsel guaranteed in
the Constitution cannot exclude the central role plea bargains play. For the most part, plea
bargaining determines who goes to jail and for how long. It's not some adjunct of the criminal
justice system. It is the criminal justice system, Kennedy said.
ABOLISHING PLEA BARGAINING WILL CRIPPLE THE

LEGAL SYSTEM
In an unusual oral dissent from the bench, Justice Antonin Scalia blasted the decision as absurd.
Until today, Scalia said, plea bargaining was a somewhat embarrassing part of the criminal
justice system, a necessary evil to prevent the system from grinding to a halt if most cases went
to trial.
Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept
responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial
is avoided, and everybody benefits. But in recent decades, American legislators have
justice system.
criminalized so many behaviors that police are arresting millions of people annually—almost 11
million in 2015, the most recent year for which figures are available. Taking to trial even a
significant proportion of those who are charged would grind proceedings to a halt. According to
Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law
School, the criminal-justice system has become a “capacious, onerous machinery that sweeps
everyone in,” and plea bargains, with their swift finality, are what keep that machinery running
smoothly.
To abolish the only thing keeping the justice system in the U.S. from grinding to a halt is plea
bargaining. Take that away and you have chaos. Therefore, you must vote negative in this
debate.

justice system.
NEGATIVE EVIDENCE

justice system.

The reality is that for the most part, criminal justice today is a system of pleas, said Justice
Anthony Kennedy on behalf of the court majority. Ninety-five percent of all convictions are the
result of a plea bargain, not a trial, and the right to adequate assistance of counsel guaranteed in
the Constitution cannot exclude the central role plea bargains play. For the most part, plea
bargaining determines who goes to jail and for how long. It's not some adjunct of the criminal
justice system. It is the criminal justice system, Kennedy said.
In an unusual oral dissent from the bench, Justice Antonin Scalia blasted the decision as absurd.
Until today, Scalia said, plea bargaining was a somewhat embarrassing part of the criminal
justice system, a necessary evil to prevent the system from grinding to a halt if most cases went
to trial.
*****The card below is also in the Affirmative evidence under “PLEA BARGAINING
LEADS TO BAD LAWYERING” *****
This is a very practical court. And I think what this is, is a court that says: Look, practically
speaking, plea bargaining is where we need to be policing things. This is for 95-plus percent
defendants. All those defendants have is their lawyer. And if their lawyer is deficient, then these
defendants have nothing.
Professor Weisberg adds that the court has often been infuriated by egregiously bad lawyering.
The court is very worried about the quality of legal representation for poor people. It doesn't
expect it to be very good representation, but it's appalled when it's horrifically bad
representation. And it's sort of saying to the world: Get real. Most of the bad lawyering occurs in
cases that involve plea bargaining because most cases involve plea bargaining.

justice system.

In plea bargains, defendants can minimize the risks they face, and prosecutors can save time,
effort and money. This keeps the courts from becoming totally overloaded. Yet there's a risk that
those who have reasonable claims to innocence will be unreasonably discouraged from pressing
for a trial. Those who do opt to plea-bargain should be able to expect a fair process.

justice system.
ABOLISHING PLEA BARGAINING WILL CRIPPLE THE

LEGAL SYSTEM
Liptak, Adam, and Eric Lichtblau [2003]. "New Plea Bargain Limits Could Swamp
Courts, Experts Say." New York Times, 24 Sept. 2003, p. A23.
David Burnham, co-director of the Transactional Records Access Clearinghouse at Syracuse

University, which tracks data on federal law enforcement, said the Justice Department could not
significantly reduce plea bargains ''without collapsing the entire court system.''
Plea bargains ''are a necessary thing,'' Mr. Burnham said. ''Plea bargains have been used
historically because the courts don't have time to have trials. Charges are reduced to encourage
prisoners to avoid going to trial, and we just don't have enough judges to do it differently. If you
force everyone to go to trial, you'd have to hire a lot more judges.''
Ideally, plea bargains work like this: Defendants for whom there is clear evidence of guilt accept
responsibility for their actions; in exchange, they get leniency. A time-consuming and costly trial
is avoided, and everybody benefits. But in recent decades, American legislators have
criminalized so many behaviors that police are arresting millions of people annually—almost 11
million in 2015, the most recent year for which figures are available. Taking to trial even a
significant proportion of those who are charged would grind proceedings to a halt. According to
Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law
School, the criminal-justice system has become a “capacious, onerous machinery that sweeps
everyone in,” and plea bargains, with their swift finality, are what keep that machinery running
smoothly.
The advantages of plea bargains became even clearer in the latter part of the 20th century, after
the Supreme Court, under Chief Justice Earl Warren, issued a series of decisions, between 1953
and 1969, that established robust protections for criminal defendants. These included the
landmark Gideon v. Wainwright and Miranda v. Arizona decisions, the former of which
guaranteed the Sixth Amendment right to counsel in felony cases (since expanded to some
misdemeanor cases), and the latter of which required that police inform those in their custody of
the right to counsel and against self-incrimination. The Court’s rulings had the inevitable effect
of making trials lengthier and more burdensome, so prosecutors began turning more frequently to
plea bargains. Before the 1960s, according to William J. Stuntz, between one-fourth and one-
third of state felony charges led to a trial. Today the figure is one-twentieth.

justice system.
THE SUPREME COURT HAS CREATED PROTECTIONS FOR

DEFENDANTS
The legal system provides few rules and protections for those who take a deal. In what has been
described as one of the Court’s earliest plea-bargain decisions, Brady v. United States (1970), the
justices found that guilty pleas were acceptable as long as certain conditions were met, among
them the following: Defendants had to have competent counsel; they had to face no threats,
misrepresentations, or improper promises; and they had to be able to make their plea
“intelligently.”

justice system.
THE RIDICULOUS NUMBER OF MINOR LAWS HAVE

MULTIPLIED THE NUMBER OF DEFENDANTS IN THE
COURT SYSTEMS
The growth of the system took on a life of its own. “No one sets out to create bloated criminal
codes,” I was told by David Carroll, the executive director of the Sixth Amendment Center,
which protects the right to counsel. “But once they exist, vast resources are spent to justify
them.” In response to the crime wave, the United States significantly expanded police forces to
catch criminals, prosecutor’s offices to charge them, and the correctional system to incarcerate
them. Legislators have added so many acts to criminal codes that in 2013, Neil Gorsuch—now
on the Supreme Court, but then an appellate judge—publicly raised concerns. In a speech
sponsored by the Federalist Society, he asked, “What happens to individual freedom and
equality—and to our very conception of law itself—when the criminal code comes to cover so
many facets of daily life that prosecutors can almost choose their targets with impunity?”
In Nashville, I was struck by how many people were in court because they had been picked up
for driving with a suspended license. It’s a common practice, I learned, for states to suspend the
licenses of people who have failed to pay court costs, traffic fines, or child support. In 2011, for
example, Tennessee passed a law requiring the suspension of licenses for nonpayment of certain
financial obligations. Both Glenn Funk, who must enforce this law, and Dawn Deaner, the head
of the public defender’s office, agree that it’s absurd, in part because the scheme is almost
perfectly designed to prevent the outcome it seeks. If people stop driving when their licenses are
suspended, they may no longer be able to reliably get to work, which means they risk losing their
jobs and going deeper into debt. As a result, many people whose licenses have been suspended
drive anyway, putting themselves in constant jeopardy of racking up misdemeanor convictions. It
is common for defendants charged with such minor infractions to represent themselves, even if
they don’t understand the consequences of pleading guilty, and even if there might be some
mitigating circumstances that an attorney could argue on their behalf. Plead guilty to enough
suspended-license misdemeanors, and a subsequent charge can be a felony.
Police officers have wide discretion in deciding whether a person is breaking the law, and they
sometimes arrest people for such offenses as sleeping in public and sitting too long on a bench.
One case involved a woman whose crime seemed to have been, in the words of the officer who
filed the report, “walking down the road around 1:30 a.m.” with “no legitimate reason.” Casey
told me before this meeting that she hoped to get all such cases dismissed. “Walking down the
street!” she said. “Imagine if it was you.”

justice system.
BETTER PROTECTION FOR PLEA BARGAINERS ARE

NEEDED
But plea bargains aren’t going away, so reformers have practical suggestions for improving
them. Bibas wants a “consumer-protection model.” Shoppers, he told me, have more safeguards
when making a credit-card purchase than defendants do when pleading guilty. He wants pleas to
clearly explain several things: exactly what defendants are pleading to, what obligations (classes,
probation) defendants are incurring, what the consequences of their failing to follow through
would be, and what potential effects a guilty plea could have on their lives. He has also
suggested a “cooling off” period before a defendant takes a plea in serious cases. Stuntz
suggested giving those who plead guilty the same protections that are offered in the military
system of justice. Before accepting a plea, military judges conduct inquiries to ensure that pleas
were not made under duress, and that the facts support them. This, Stuntz argued, would shift
some power from prosecutors back to judges and make pleas more legitimate, which in turn
would produce “a large social gain.”

justice system.
SUPREME COURT REQUIRES EFFECTIVE LEGAL COUNCIL

TO UPHOLD PLEA BARGAINS
There is no constitutional right to a plea bargain, and these cases do not change that fact. But if
prosecutors make a plea offer, the court now requires that defendants have effective counsel in
considering the offer. With this new standard, judges are more likely to require prosecutors to
make plea offers in writing or in open court so that there is no dispute about the offer and no
doubt that the defendants understood what they rejected.
The Supreme Court has long made clear that the right to effective counsel exists in all parts of a
criminal proceeding. The court has strengthened that right, and improved American justice, by
applying it to the entire plea-bargaining process.
On its own, the high number of guilty pleas is not proof of a problem that demands an aggressive
response across the federal and various state systems. The Justice Department already expects
prosecutors to ensure that plea deals are fair. Federal judges have discretion to review deals.
Public defenders on the federal level are generally excellent, which probably make things fairer
than in some states.

justice system.
THE REAL NEED IS FOR REFORM OF THE CRIMINAL CODE

No amount of tinkering, however, will matter much unless Americans stop trying to use the
criminal-justice system as a tool for managing social ills. “Why are these cases being pumped
into the system in the first place?,” Bibas said to me. He’s not alone in asking. Across the
country, in red states and blue states, reformist state and district attorneys have recently been
elected on platforms of rolling back harsh sentencing, reducing the enforcement of marijuana
laws, and knocking down crimes from felonies to misdemeanors. And change is happening. Last
year, for example, the New York City Council passed legislation that made offenses such as
public drinking and urination civil rather than criminal violations, and thus subject largely to
tickets and fines.
Paring back our criminal code and eliminating many mandatory minimum sentences will be
crucial to reform. In the long-running War on Drugs, the government has regularly prosecuted
people for possessing small amounts of illegal substances, or for merely possessing drug
paraphernalia. Often, on the basis of no evidence beyond a police officer’s assertion, officials
have charged and prosecuted defendants for the more serious crime of “intent to sell.” But during
Prohibition, when the manufacture, transport, and sale of alcohol were federal crimes, Americans
were not arrested by the millions and incarcerated for drinking. And they certainly didn’t plead
guilty to possessing martini glasses and other drinking paraphernalia.
To break the cycle, the United States will need to address the disparity in funding for the two
sides of its legal system. According to Fordham’s John Pfaff, of the $200 billion spent on all
criminal-justice activities by state and local governments in 2008, only 2 percent went to
indigent defense. But the system needs more than just money, says Jonathan Rapping, who in
2014 won a MacArthur genius grant for his work as the founder of Gideon’s Promise, which
trains and supports public defenders around the country—including those in Nashville. What’s
necessary, Rapping argues, is a new mind-set. Defenders need to push back against the
assumption that they will instantly plead out virtually every client, rubber-stamping the
prosecutor’s offer. Ember Eyster did ultimately negotiate a plea bargain for Shanta Sweatt, but in
doing so she pushed back, using all the tools at her disposal to ensure that Sweatt was not
incarcerated.

justice system.
TRUMP MAKES THE SITUATION WORSE

Making these sorts of changes would allow authorities at the federal, state, and local levels to
allocate more resources to the underlying social problems that drive so many arrests. But reform
will not be easy. Even though crime rates remain near historic lows nationally, Donald Trump’s
administration has professed a desire to return to the days of “law and order.” U.S. Attorney
General Jeff Sessions has announced, for instance, that he wants federal prosecutors to use
maximum possible charges for crimes and to enforce mandatory minimums, which would result
in harsh plea bargains. Almost all crime is handled not by the federal government but by the
states, but with both the president and the country’s highest law-enforcement official inflaming
public fears, advocates for change worry about the fate of the reform efforts set in motion during
Barack Obama’s administration.
The United States is experiencing a criminal-justice crisis, just not the one the Trump
administration talks about. By accepting the criminalization of everything, the bloat of the
criminal-justice system, and the rise of the plea bargain, the country has guaranteed that millions
of citizens will not have a fair shot at leading ordinary lives.

justice system.
TRIAL BY JURY IS NOT JUST

Trial by jury faces an uncertain future in the United States. Critics have long called jury trials
anachronistic and ultimately unjust, and in recent years courts have increasingly stripped juries
of their power, according to the late U.S. District Judge William L. Dwyer in his last book, In the
Hands of the People.
Dwyer quotes law professors, lawyers, and judges who concur that there is a trend toward taking
issues away from juries. "For the first time in our country's history, the future of the jury system
is in serious jeopardy," says Ronald Jay Cohen, chairman of the American Bar Association's
Litigation Section. "It's happening quietly in state after state, in court after court, and in several
different areas of the law. But make no mistake, the right to trial by jury is slipping away."
Public confidence in juries has been shaken by controversial acquittals and hung juries in recent
high-profile cases, such as O.J. Simpson's, and the prevailing belief that juries award excessive
damages to claimants and that they simply cannot understand complex evidence.

justice system.
PLEA BARGAINING IS NOT KILLING TRIAL BY JURY

Dwyer blames trial by jury's downward spiral on the way adversarial justice is managed, not on
the juries themselves. He cites overcontentiousness, expense, delay, fecklessness,
hypertechnicality, and overload as six deadly sins of American litigation, arguing that
eliminating these sins of process and access can return credibility and import to the jury box.

justice system.
PLEA BARGAINING IS MORE EFFICIENT
, 55, 1. p.29
Most observers find that plea bargaining offers institutional advantages to each actor in the
criminal justice system, and most especially to prosecutors and judges, compared to a trial-
centered world. Because it offers something for everyone, the dominance of plea bargaining is
easy to understand.
, 55, 1. p.29
Most discussions of plea bargaining begin with the observation that plea bargaining makes the
prosecutor more administratively efficient. Negotiated pleas allow each prosecutor to handle far
more cases than she could if each case were to proceed to trial. (18) For some, this greater
efficiency makes the shift from trials to negotiated pleas worthwhile, perhaps even ideal. (19) In
theory, the prosecutor could divert resources from current cases to new cases, allowing the
prosecutor to use plea bargains as a pricing mechanism to get the greatest deterrent power out of
limited resources
, 55, 1. p.29
Plea bargaining makes prosecutors more efficient because it gives them a greater ability to
predict outcomes in cases. (21) In a system where almost every case is tried on the original
charges, the prosecutor would have to account for some risk that the judge or jury would acquit.
The government might win most trials but would lose others outright. On the other hand, where
prosecutors can reduce charges, they achieve a reliable compromise between maximum
punishment and no punishment at all. Some list this as one of the major benefits of plea
bargaining, both because it allows prosecutors to predict the effects of their charges, and because
the public receives "half a loaf" where it might have received none at all. (22) Indeed, the
compromise outcome allows the prosecutor to respond to the "equities" in particular cases.

justice system.
SHORT TRIALS ARE NOT THE ANSWER

, 55, 1. p.29
Whenever prosecutors claim to have reduced plea bargains and increased trial rates, academics
respond with more than their usual dose of skepticism. Bargaining is inevitable, say observers,
not only because of severe caseload pressure, but also because of social habits. (36) The "repeat
players" in criminal cases--prosecutors, experienced defense attorneys (especially public
defenders), and judges--interact in predictable ways. Prosecutors and defense attorneys develop
routines for handling similar cases, and the "work group" makes it difficult for any one actor to
change bargaining terms too abruptly. (37) The human beings who engage daily in this process
have a limited capacity for conflict and innovation, and will naturally, over the long haul, find
ways to accommodate one another. (38)
, 55, 1. p.29
Sometimes, however, this theory about group dynamics is hard to square with reality. For those
who wish to establish that plea bargaining is an inevitable and irrepressible force in American
criminal justice, Philadelphia is a problem. The city has long operated a system that relies more
on short bench trials than on pleas of guilty. A number of scholars conducted case studies in
Philadelphia (and a few other cities with high rates of bench trials) and concluded that the trials
in those cities were not truly adversarial trials. Instead, they were "slow pleas" of guilt. The brief
trials allowed the defendant to present evidence about the circumstances of the case, not to obtain
an acquittal, but to influence the judge at sentencing.

justice system.
BANNING PLEA BARGAINING REDUCES THE NUMBER OF

CASES PROSECUTORS AGREE TO PROSECUTE
, 55, 1. p.29
Since the cases were not ending in negotiated pleas or trials, what was happening to them? The
answer was a combination of aggressive screening and open guilty pleas. Before the ban,
prosecutors in Fairbanks refused to prosecute about 4% of the felonies referred to them by the
police or other investigators. After the ban, the proportion of felonies that prosecutors declined to
prosecute increased to about 44%. (48) A large portion of the case load (about 23%) was
disposed of through open pleas of guilt. (49) This was part of the Attorney General's thinking
when he created the plea ban. More careful selection of cases would make it possible to stick
with the initial charges, even in front of a judge or jury.
, 55, 1. p.29
The Alaska experience received lackluster academic reviews. Some implied that the failure to
increase trials proved that unseen bargains were still driving the system, and explained the high
number of open guilty pleas. (50) Others pointed to the reappearance of charge bargaining after
ten years, and suggested that it is futile to place controls on the quintessential prosecutorial
decision of charge selection. (51) Some implied that Alaska was too unusual a jurisdiction to
offer any guidance to prosecutors in most major American cities. (52) However, other
jurisdictions scattered around the country have duplicated pieces of the Alaska experience over
the years. Some prosecutors in other locales have picked out priority crimes like homicide and
banned plea bargains for those cases. (53) Some of the bans target particular forms of bargaining
rather than particular crimes. (54) The reaction to these experiences, like the reaction to the
Alaska plea ban, has been subdued. If these prosecutors were not increasing their trial rates, the
critics found the effort unimportant.

justice system.
BANNING PLEA BARGAINING REDUCES THE NUMBER OF

CASES PROSECUTORS AGREE TO PROSECUTE
Reading the gratuity statute as wholly prohibiting federal prosecutors from exchanging plea
agreements with criminal defendants for testimony, as the Singleton I court did, is also
unsatisfactory, given how deeply ingrained plea bargaining is in our criminal justice system and
how severely its banishment would hamper the ability of prosecutors to obtain criminal
convictions against co-defendants. Prohibition of all plea bargains would protect the interests of
criminal defendants by reducing the chance that co-defendants would be induced by plea
agreements to testify falsely against them, but this reading of subsection 201(c)(2) would make it
very difficult for the criminal justice system to function.

justice system.
PUNISHING UNREPENTANT DEFENDANTS IS APPROPRIATE

The explanations for punishing those who insist upon trial come in two forms: the institutional
and the penal. The latter insists that the defendant's willingness to plead guilty provides
important information about the amount of punishment that the defendant is going to require.
Apparently, the defendant who is willing to accept responsibility for his criminal conduct and
expresses remorse for what he has done needs less correction than those obstinate, enough to
insist upon a trial. Proponents of this regime also mention the desirability of the correctional
process beginning as soon as possible. These explanations reflect the rehabilitative model of
punishment that is currently out of favor.(19)
The institutional explanation is Herbert Packer's crime control model writ large.(20) Society
needs to discourage people from going to trial because the criminal justice system depends upon
being able to handle all but the tiniest fraction of cases administratively. Society also needs to
discourage defendants from going to trial because it knows that they are guilty (otherwise they
would not have been charged). The true arbiters of guilt and innocence are police and
prosecutors, and their conclusions as to guilt are accurate.(21) On this view, the interest in
arriving at accurate conclusions is best served through guilty pleas. The same cannot be said for
trials since there are occasional acquittals that are necessarily inaccurate. Thus, trials need to be
discouraged and guilty pleas encouraged.

justice system.
PLEA BARGAINING IS NOT UNCONSTITUTIONAL

magazine.]
Yet the mere fact that a process can be abused does not necessarily make that process
unconstitutional or immoral. Plea bargaining is rife with unfair prosecutorial tactics, and it needs
reform. But the process itself is not unconstitutional, nor does it necessarily violate a defendant's
rights.
magazine.]
A plea bargain is a contract with the state. The defendant agrees to plead guilty to a lesser crime
and receive a lesser sentence, rather than go to trial on a more severe charge where he faces the
possibility of a harsher sentence. Plea bargaining is enormously popular with prosecutors;
according to researcher Douglas Guidorizzi, something like 90 percent of criminal cases end in a
plea bargain.
magazine.]
In recent decades, courts have upheld extreme and unfair prosecutorial tactics in negotiating plea
bargains. Last year, in United States v. Ruiz, the U.S. Supreme Court held that the Constitution
does not require prosecutors to inform defendants during plea bargaining negotiations of
evidence that would lead to the impeachment of the prosecution's witnesses. As Timothy Lynch
noted in his 2002 article "An Eerie Efficiency," this rule would allow the prosecution to not
disclose during plea negotiations that its only witness was too drunk at the time of the crime to
provide any reliable evidence. Such tactics are unfair. If a plea bargain is a contract, it should be
subject to the same rules that apply to other contracts, including the requirement that parties
disclose relevant information. If a car dealer must tell you that the car he sells you is defective,
prosecutors ought to he required to disclose when their cases are defective. But the sad fact that
such inappropriate bargaining tactics exist does not obviate the freedom of contract itself.

justice system.
PLEA BARGAINING IS NOT UNCONSTITUTIONAL CONT.

magazine.]
One argument against plea bargaining is that the Sixth Amendment guarantees a right to a jury
trial, not to a faster, more potentially error-prone procedure like plea bargaining. As Lynch has
written, "The Framers of the Constitution were aware of less time-consuming trial procedures
when they wrote the Bill of Rights, but chose not to adopt them." But that does not prove plea
bargaining is unconstitutional. After all, at the time the Sixth Amendment was written, there
were no Federal Rules of Evidence, no Miranda rights, no court-appointed attorneys, and no
bench trials. The Framers' notion of a "fair trial" differs greatly from ours. The Constitution's
limits on criminal procedure are certainly indispensable protections for individual liberty, a great
advance over British rule, and a testament to the Founders' greatness--but they only go so far.
magazine.]
The U.S. Supreme Court held in the 1979 case Gannett Co. Inc. v. DePasquale that the public
does not "have an enforceable right to a public trial that can be asserted independently of the
parties in the litigation." That seems reasonable; while requiring jury trials may make sense as a
matter of policy, it is not an inalienable right. Life, liberty, and the pursuit of happiness are
inalienable by nature. But the right to a jury is a civil right, not a natural right. If defendants can
waive personal-jurisdiction, and waive their right to an attorney, there seems little sense in
saying that the jury right is inalienable. Today, it seems to be universally conceded that the right
to a jury trial is alienable, and nothing in the Constitution says otherwise. It follows that a
defendant can "sell" his right to trial if he so chooses. And at least some defendants--often guilty
ones--benefit from doing so.
magazine.]
A criminal defendant, by contrast, has no right not to be indicted for his crimes. As Lynch says,
the criminal may not walk away from the state; he is rightfully subject to any indictment
consistent with the facts and law. The government may offer leniency and give up its right to
indict him in exchange for a plea, just as it may offer to forgive other debts or confer other
benefits. But the defendant has no grounds for complaint if the government chooses not to.

justice system.

magazine.]
Government policies that chill the exercise of constitutional rights ought to be regarded with
great suspicion. But they are not per se unconstitutional or unjust. Government, like private
businesses, often purchases the rights of citizens: members of the military are forbidden to
criticize the president, for instance, and private contractors doing business with the government
must often comply with "living wage" requirements. Unwise as those policies may be, they are
not a violation of anybody's rights, because they are based on the parties' consent. If the tactics
used to induce consent are so overbearing as to obviate that consent, then the procedure should
be reviewed under due process standards and, in a case in which the prosecution's tactics are
fraudulent, they should be struck down. But where that is not the case, a plea bargain does not
itself violate the Constitution.

justice system.

magazine.]
Disparate punishments In short, Lynch's claim that plea bargaining is unconstitutional comes
down to his complaint that "disparate punishments for the same offense [are not] sensible." But
similarly situated defendants who make different choices in legal strategy often end up with
different sentences. One defendant might choose to waive his right to testify, while another
might exercise that right. The result might be disparate sentences, or even sentences that are
insensible to outside observers. But that choice is entirely constitutional. The courtroom may not
seem like a place for haggling, but that is exactly what it is, in both civil and criminal contexts. A
civil defendant can settle his case for a certain sum; a criminal defendant for a certain amount of
time. If the calculations made by prosecutors, or plaintiffs, and defendants are influenced by fear
or intimidation rather than calm deliberation, then statutory reform is certainly warranted. But
nothing in the Constitution compels it.

justice system.
IF INNOCENT PEOPLE CAN’T GET A FAIR TRIAL IT IS THE

SYSTEM’S FAULT
magazine.]
Lynch makes many valid points in criticizing plea bargaining. Ruiz was wrongly decided; courts
should not give free reign to prosecutors; the criminal justice system should not be manipulated,
or constitutional guarantees watered down, in order to prosecute the war on drugs more
efficiently. But those criticisms surround plea bargaining without quite hitting the target. For
instance, Lynch wrote in his 2002 article, "It is easy for some people to breezily proclaim that
they would never plead guilty to a crime if they were truly innocent, but when one is confronted
with the choice of two years in jail or quite possibly 20 years' imprisonment, the decision is not
so easy." That is true, but note that Lynch assumes that the innocent defendant will be convicted
and sentenced to 20 years. Without that assumption, the hypothetical defendant's risk profile
changes, and surely innocent defendants have reason to believe that they are less likely to be
convicted. If not, then our target should be the trial system, not plea bargaining.
magazine.]
Innocent defendants are convicted all too often, but if defendants are so afraid of trials that they
regularly plead guilty to crimes they did not commit in order to avoid a trial, then that is an
indictment of the trial system, not plea bargaining. And while it is true that plea bargains are
often the product of overbearing prosecutorial bargaining tactics, that is a criticism of the
negotiating process, not of the right to make the contract. Finally, it is true that the Framers
included a right to trial by jury among our vital constitutional guarantees, but that does not mean
defendants lack the freedom to waive that right or trade it to the state in exchange for a lighter
sentence. Mere efficiency does not justify resorting to a constitutionally flawed procedure. But
there are sufficient justifications for plea bargaining. Its flaws are procedural, not constitutional,
and it needs reform, not abolition.

justice system.
PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL

JUSTICE NOT PLEA BARGAINS
Bibas, S. (Nov 2001). Apprendi and the dynamics of guilty pleas. Stanford Law Review. , 54, 2.
p.311 [Stephanos Bibas, Associate Professor, University of Iowa College of Law]
Professors Nancy King and Susan Klein devote most of their Commentary to a single subsection
of my recent article. (1) My entire article argued that Apprendi v. New Jersey (2) exemplified
criminal procedure's misguided focus on jury trials at the expense of the real world of guilty
pleas. Professors King and Klein focus on my narrower point that Apprendi undercuts due
process by making it harder for many defendants to secure judicial hearings after they plead
guilty. In summary, I argued that defendants used to be able to get the massive benefits of
pleading guilty while still enjoying enhancement hearings at sentencing. Now that enhancements
are issues for jury trials, defendants cannot gain both benefits. They must either allocute to and
concede these enhancement issues to gain guilty-plea benefits or go to trial on enhancement
issues and forfeit these plea benefits. Professors King and Klein claim that defendants face no
additional pressure to give up hearings under this scheme. But they fail to see how prosecutorial
and judicial behavior reinforce the pressures to plead guilty, making hearings harder to secure for
many defendants.
Wright, R., & Miller, M. (April 2003). Honesty and opacity in charge bargains. Stanford Law
Review. , 55, 4. p.1409 [Ronald Wright is Professor of Law at Wake Forest University School of
Law. Marc Miller is Professor of Law at Emory University School of Law]
We part ways with Judge Lynch on both the virtues of charge bargaining and the power of
defense counsel to add value during those negotiations. We believe that pervasive harm stems
from charge bargains due to their special lack of transparency. Charge bargains, even more than
sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an
accurate or systematic way. We do not believe that active participation by even the best defense
counsel can solve this problem. Further, we believe that Lynch's image of defense participation
is impossible to align with the experience in most state and local jurisdictions, including New
Orleans. The image may even be hard to align with the relatively wealthy federal system of
criminal justice.

justice system.
PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL

JUSTICE NOT PLEA BARGAINS
It matters a great deal which administrative system of criminal justice one chooses. Prosecutors
have every reason to want a system that depends on negotiations for reduced charges. Such a
system leaves prosecutors with overwhelming authority and discretion, and gives the public little
opportunity to monitor the quality of the end product. When a prosecutor chooses to adopt a
system that limits discretion and that allows greater public scrutiny of office decision making, as
the New Orleans District Attorney has done, it is reason to cheer. It is time for more prosecutors
to step out from behind the curtain, and operate the administrative justice machine in the open.

justice system.
PLEA BARGAIN IS THE CRIMINAL PROCESS

In Judge Lynch's view, plea negotiations are the criminal process of adjudication, where defense
attorneys contest facts and evidence and where prosecutors respond with reasoned judgments,
including charge reductions. Bargaining is necessary to allow any meaningful input from defense
attorneys during plea negotiations. Without bargaining, prosecutorial choices go unchallenged
and uninformed by defendants and their lawyers.

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January-February 2018 L-D resolution:

Resolved: Plea bargaining ought to be abolished in the

DEBATE DOCTORS 2017 1 PLEA BARGAINING

PLEA BARGAINING IS KILLING THE CONSTITUTIONAL RIGHT OF TRIAL BY

DEBATE DOCTORS 2017 2 PLEA BARGAINING

CONTENTION 2: PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL

DEBATE DOCTORS 2017 3 PLEA BARGAINING

PROSECUTORIAL MISCONDUCT UNDERMINES CRIMINAL JUSTICE NOT PLEA

DEBATE DOCTORS 2017 4 PLEA BARGAINING

EXAMINING THE RESOLUTION

DEBATE DOCTORS 2017 6 PLEA BARGAINING

DEBATE DOCTORS 2017 7 PLEA BARGAINING

Good luck in the new year!

DEBATE DOCTORS 2017 8 PLEA BARGAINING

AFFIRMATIVE CASE 1: OVERVIEW

DEBATE DOCTORS 2017 9 PLEA BARGAINING

AFFIRMATIVE CASE: CONSTITUTIONAL

The value for the debate should be Constitutional protections

CONTENTION 1: THE PLEA BARGAINING PUNISHES

CONTENTION 2: PROSECUTORS WILL GO TO ANY

DEBATE DOCTORS 2017 10 PLEA BARGAINING

Lynch goes on to say:

CONTENTION 3: PLEA BARGAINING DOES NOT SERVE

DEBATE DOCTORS 2017 11 PLEA BARGAINING

DEBATE DOCTORS 2017 12 PLEA BARGAINING

AFFIRMATIVE CASE 2: OVERVIEW

DEBATE DOCTORS 2017 13 PLEA BARGAINING

AFFIRMATIVE CASE: JUSTICE UNDER THE LAW

CONTENTION 1: PLEA BARGAINING IS KILLING THE

CONTENTION2: PLEA BARGAINS ARE OFTEN COERCED

DEBATE DOCTORS 2017 14 PLEA BARGAINING

CONTENTION 3: PLEA BARGAINS DO NOT RESULT IN

CONTENTION 4: PLEA BARGAINING DOES NOT SERVE THE

DEBATE DOCTORS 2017 15 PLEA BARGAINING

DEBATE DOCTORS 2017 16 PLEA BARGAINING

DEBATE DOCTORS 2017 17 PLEA BARGAINING

WHAT IS PLEA BARGAINING

DEBATE DOCTORS 2017 18 PLEA BARGAINING

UNITED STATES V. JACKSON (1968)

UNITED STATES V. JACKSON

DEBATE DOCTORS 2017 19 PLEA BARGAINING

UNITED STATES V. JACKSON (1968) NEVER REFUTED

DEBATE DOCTORS 2017 20 PLEA BARGAINING

PLEA BARGAINING LEADS TO BAD LAWYERING

DEBATE DOCTORS 2017 21 PLEA BARGAINING

PLEA BARGAINING CAUSES INCONSISTENCY IN

DEBATE DOCTORS 2017 22 PLEA BARGAINING

TOUGHER SENTENCING PASSED BY CONGRESS MAKES

DEBATE DOCTORS 2017 23 PLEA BARGAINING

PLEA BARGAINING DEPRIVES CITIZENS OF

DEBATE DOCTORS 2017 24 PLEA BARGAINING

SUPREME COURT UPHELD PLEA BARGAINING FOR

DEBATE DOCTORS 2017 25 PLEA BARGAINING

PLEA BARGAINING IS KILLING THE CONSTITUTIONAL

DEBATE DOCTORS 2017 26 PLEA BARGAINING

PLEA BARGAINING IS KILLING THE CONSTITUTIONAL

DEBATE DOCTORS 2017 27 PLEA BARGAINING

PROSECUTORS ADMIT PUNISHING PEOPLE FOR USING

DEBATE DOCTORS 2017 28 PLEA BARGAINING

PLEA BARGAINING GIVES PROSECUTORS TOO MUCH

DEBATE DOCTORS 2017 29 PLEA BARGAINING

SOUTH CAROLINA PROSECUTORS ARE THE WORST

DEBATE DOCTORS 2017 30 PLEA BARGAINING

SOUTH CAROLINA PROSECUTORS ARE THE WORST