A Wake-Up Call from the Plea-Bargaining Trenches
By Stephen J. Schulhofer
Schulhofer's article proved to be a quick, interesting read. Essentially, he critiques much of the current work regarding studies on the effects of plea-bargaining on the justice system, and effectively dismisses the claims by those in favor of preserving the present system. He then follows his critique with a couple suggestions about ways in which we could alter the present system for the better: either by setting a fixed deal system, in which plea bargains do not differentiate on a case-by-case basis, or by abolishing the system entirely.
I found Schulhofer's work to be quite insightful, because, in my opinion, the way in which we use plea-bargains, especially when it comes to crime cases, it completely circumvents the justice process. The facts are not hear, due process is not met, and both the prosecution and defense attorney's use bargaining as a means to better themselves. Prosecutors can offer a deal in case which they may not win at trial to improve their own record, and defense attorneys are paid a flat fee and are often overloaded with cases, so there is almost no incentive to go through a long and lengthy trial. In either case, there is no justice, and both sides actually work together in order to prevent justice by offering too lenient, or too harsh sentences.
However, I don't entirely agree with Schulhofer's conclusion that plea-bargaining should be completely abolished. I just don't think it can happen within the system because it is too deeply entrenched. Sometimes a bargain can be appropriate, but more often than not, we are too quick to use it to the point that it abuses everything we know about law and order. I do actually agree with the author's point about the trials themselves, especially when comparing trials by jury vs. those that appear simply before the bench. In reality, it is not truly the trial process that ties up our legal resources, but the selection of the jury, and their deliberation, amongst many other things that actually take more time. In reality, if more cases were determined by justice rather than juries, we could exponentially speed up the trial process, without using additional resources, while at the same time decreasing the use of plea bargaining.
Furthermore, I think more needs to be done to encourage our defense attorneys to take more cases to trial instead of jumping to accept the plea. WE NEED more public defenders - we need to give them more incentives to work other than processing as many cases as possible. That's where change really needs to take place. Combine this idea with Shulhofer's and I think we may seem a vast improvement within the Justice system. Take the money used to find and interview and build juries for trials and give it to the defense attorneys so they can argue there cases before a a judge, or before the bench.
By Stephen J. Schulhofer
Schulhofer's article proved to be a quick, interesting read. Essentially, he critiques much of the current work regarding studies on the effects of plea-bargaining on the justice system, and effectively dismisses the claims by those in favor of preserving the present system. He then follows his critique with a couple suggestions about ways in which we could alter the present system for the better: either by setting a fixed deal system, in which plea bargains do not differentiate on a case-by-case basis, or by abolishing the system entirely.
I found Schulhofer's work to be quite insightful, because, in my opinion, the way in which we use plea-bargains, especially when it comes to crime cases, it completely circumvents the justice process. The facts are not hear, due process is not met, and both the prosecution and defense attorney's use bargaining as a means to better themselves. Prosecutors can offer a deal in case which they may not win at trial to improve their own record, and defense attorneys are paid a flat fee and are often overloaded with cases, so there is almost no incentive to go through a long and lengthy trial. In either case, there is no justice, and both sides actually work together in order to prevent justice by offering too lenient, or too harsh sentences.
However, I don't entirely agree with Schulhofer's conclusion that plea-bargaining should be completely abolished. I just don't think it can happen within the system because it is too deeply entrenched. Sometimes a bargain can be appropriate, but more often than not, we are too quick to use it to the point that it abuses everything we know about law and order. I do actually agree with the author's point about the trials themselves, especially when comparing trials by jury vs. those that appear simply before the bench. In reality, it is not truly the trial process that ties up our legal resources, but the selection of the jury, and their deliberation, amongst many other things that actually take more time. In reality, if more cases were determined by justice rather than juries, we could exponentially speed up the trial process, without using additional resources, while at the same time decreasing the use of plea bargaining.
Furthermore, I think more needs to be done to encourage our defense attorneys to take more cases to trial instead of jumping to accept the plea. WE NEED more public defenders - we need to give them more incentives to work other than processing as many cases as possible. That's where change really needs to take place. Combine this idea with Shulhofer's and I think we may seem a vast improvement within the Justice system. Take the money used to find and interview and build juries for trials and give it to the defense attorneys so they can argue there cases before a a judge, or before the bench.
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Hey Caveman,
ReplyDeleteI'm with you on your thoughts on plea bargaining, although I do tend to think that it should be completely abolished. But your point about defense attorneys is SO true. We do need more public defenders. But what would your motivation be if you were paid a flat fee before the trial? It's like we're not giving defendants a chance, and it's really sad. And I think that "jury" is just America's excuse for being unfair. If we stick in a bunch of normal people to supplement the normal person with the gavel, then somehow it becomes a fair trial, and as we know, that's just not entirely true. More public defenders -- how do we recruit?
Great questions Nej, and honestly, that's the real crux of the problem in my opinion - not enough public defenders and no real way to recruit them, save the idea that they're helping those who can't afford proper defense.
ReplyDeleteHonestly, I think it comes down to money, and the way in which it is given out. Who's going to put in that extra effort to go to trial when they get the same standard fee to have their client plea out to a lesser charge? Combine that with the fact that a lot of public defenders, especially in large urban centers, are overwhelmed with a high volume of cases and you have a recipe for disaster, which isn't too far off from the way we defend the poor.
We need more incentives to get more public defenders to lessen the workload. And in order to do that, more states and localities should implement salaries rather than case by case fees. That way, there isn't the incentive to blow through cases as quickly as possible, because your living is based on the time you work, not how much work you can eek out in that time. With more stable, and perhaps higher, salaries, I think we could easily recruit more public defenders, which in turn would spread out the workload and actually allow clients to have more time with their attorneys to determine the best course of action, and that would in turn produce a fairer, more organized system of criminal justice.
I came to the same conclusion after reading Schulhofer. I completely agree with him that the system is inherently unfair and in many cases corrupt, but I'm not sure it's possible to wholly abolished. What about people who can't afford a trial, due to time, money or energy constraints? There needs to be some kind of system in place, but at the very least it needs some major overhauling. It would have been nice if Schulhofer had offered some ways to fix the system instead of just "get rid of it altogether!"
ReplyDeleteI agree with Caveman completely. I think that it all comes down to money and how it is distributed. I agree that there should be a salary system implemented to eliminate the problems with incentives. But I think we should take it a step further. I think that we should deprivatize the practice of law all together. In theory every lawyer would be a public defender, paid with a salary. I mean, isn't this the way it should be. If we need more public defenders, imagine how many would be gained if we started assigning attorney's, who previously had been working for some client half-way across the world, to cases that U.S. citizens are involved in.
ReplyDeleteI agree with you that plea bargaining shouldn't be completely abolished. We forget about all the times that plea bargains are used that benefit both parties. One example is a juvenile being offered a plea bargain for the childish mistake he made so that if he "turns it around" and doesn't get in trouble again the petty theft he committed won't remain on his record and impact the rest of his life. Plea bargains are used in all levels of the courts not just in major violent crimes. It is with the violent crimes that I feel plea bargaining should not be allowed. To me, this seems immoral.
ReplyDeleteI agree with talkingsoup. The whole system of plea bargaining is inherently unfair. However, getting rid of it could also be problematic. I think bi-lateral plea bargaining could yield better results (as Professor Baker mentioned in class). And I also agree that there should be a salary system to get rid of the problems that arise from it.
ReplyDeleteI agree with you too! I feel that you are exactly right about the NEED for more public defenders who are willing and dedicated to take cases to trial so that some sort of justice can prevail. Plea bargaining can leave both parties feeling confused and pressured and this is not the point of our justice system. Plea bargaining should be carefully thought about and only used in certain circumstances.
ReplyDelete