Inside the Criminal Courts: Plea Bargaining Realities

1. Chapter 9 Trial Courts: Bargaining and Sentencing in Criminal Courts Most criminal cases do not result in a trial, so this chapter focuses on the realities of plea bargaining, imprisonment and punishment. • The “Courtroom Work Group” • Typically, courtrooms appear disorganized and loud. Yet, behind it all, there is a judicial machine at work. • Courthouse regulars (judges, prosecutors, defense attorneys) share workspace and goals (dispose of cases). They are stable actors (fixtures), unlike defendants who come and go. • Triangle of Interdependence • Judges need prosecutors and defense attorneys reach plea bargains (goal=dispose of cases). • Prosecutors need defense attorneys to persuade defendants that pleading guilty is best and judges to accept those pleas (goal=% of defendants convicted)

2. Defense attorneys need prosecutors to not pursue or give harsh sentences (goal=minimize penalties). • The machine – no two crimes/cases are identical, but tend to fall within developed categories. Once placed into the category, tend to follow a preset process and outcome quickly. • Plea Bargaining Guilty pleas outnumber trials 5:1 (federal) and 10:1 (state/local). Most of these are plea bargains (process by which defendant pleas guilty expecting consideration by government. • Types of Plea Agreements • Charge bargaining – pleads guilty to less serious charge (robbery instead of armed robbery). Often reflect weakness of prosecutors case on serious charge. • Count bargaining – pleads guilty to one or some, but not all of the counts. Prosecutor dismisses other counts and charges. • Sentence bargaining (most common) – based on promise of a specific sentence.

3. Bargaining Process – what influences results? • Seriousness of offense (more serious, less flexible is the prosecutor) • Criminal record (longer the record, less flexible) • Strength of prosecutors case (stronger the evidence, less flexible) • Why cases go to trial: Two major factors • Strength of prosecutor’s case (defendant may determine that chance of acquittal is sufficiently high) • Severity of the penalty on conviction (defendant may determine that the bargained penalty is too severe, better to risk a trial) • The Courtroom Work Group labels defendants who choose trial as “irrational” when the state has a strong case • Means that some cases more likely to go to trial. Which ones? • Property offense less likely (state probably has compelling evidence; sentence not long) • Serious crimes more likely (inflexible prosecutors;

4. defendants willing to risk it given penalty) • Plea Bargaining and the Courtroom Work Group Plea bargaining is not so much a result of the size of courtroom dockets, but prosecutorial discretion. That is, plea bargaining is simply a result of the nature of the Courtroom Work Group interactions and interdependence; not a result of too many cases. Fig 9-1 % going to trial by charge. • Presumption of Factual Guilt – remember, after initial stages, there is a presumption of guilt (they were unable to get their case dismissed early • Costs and Risks of Trial – no one in the group likes trials. They are too costly (judge, bailiff, clerk, paid witnesses, attorneys, security, victims, jurors, utilities) and too risky (no one likes uncertainty). • Plea bargaining may be a result of the work group’s assessment that the legal penalties do not really match the defendant’s threat to society (provides flexibility) • Plea bargaining does in fact produce lighter sentences. “He takes my time, I’ll take his.”

5. Copping a Plea • Nolo contendere is one option where the judge accepts a plea “I will not contest it.” Defendant gets immunity from any civil cases related to crime. • Plea of guilty means more than admission; it also results in waiving rights during court process (presumption of innocence, jury trial, confrontation of witnesses). Judge makes sure (perhaps through written questionnaire) of defendants understanding. • SC has ruled that defendants may be able to withdraw guilty plea, especially if agreements change during process (new prosecutor). • Debate: Abolish Plea Bargaining? • Proponents argue that it occurs when state case is strong; opponents say opposite. • Proponents argue that it reflects rational defense attorney (imminent trial); opponents argue it reflects a stacked deck (institutional and information asymmetry against defendant).

6. Sentencing Structures 20th century = great flexibility (legislature established many options; courts given extensive discretion; parole boards, under the executive branch, had great flexibility to determine length of term). All motivated by goals of rehabilitation. 21st century = legislatures have established harsher and less flexible sentencing rules. Court and parole board discretion has been sharply limited. • Legislative Sentencing – 1990s, began limiting judicial discretion via sentencing guidelines, mandatory minimums. Also began either limiting parole board discretions or, in some cases, removed option of early release. • Judicial Sentencing – flexible historically with goal of individualizing cases (type of punishment made to fit criminal). Any potential problems here? Recently, critics have won the battle and pushed for narrow ranges of sentencing options/lengths. • Executive sentencing – Parole (governors, correction officials, and parole boards determine early release)

7. Parole is the conditioned release of an inmate (supervised by parole officers; return to prison if conditions are violated). • Most states have “good time” awards or days off term built up for good behavior. Justification – institutional order and overcrowding. • Several states have begun tightening parole board discretion and the potential for early release. • Forms of Punishment – from stocks, flogging, exile, and branding to only imprisonment, probation, fines, and death. 6.5m adults in correctional supervision. (Fig 9-2) • Imprisonment – 1.5m inmates. Grown since 80s. 1. Overcrowding – biggest problem. State = 16% over capacity; Federal = 39% more than buildings originally were designed to hold. 2. Prison conditions – 1970s, courts began finding that prison conditions violated 8th amendment (cruel and unusual). Rule that entire systems of 9 states unconstitutional. This has changed a bit over last 15 years. Court has now required proof of “a deliberate

8. indifference” and Congress ended federal court supervision of state prisons in 1996. 3. Costs – 500-cell prison costs $337m over 30 years; $20-25,000 per inmate for a year. • Probation – granted to 60% of offenders; 4m on probation (doubled since 1980s). • Designed to control offender without incarceration. Conditions: keep job, support family, report to officer. • Justified on 2 grounds: prison inappropriate for some defendants; less expensive. • Fines – oldest and most used punishment. Generate $1b annually for local gov’ts. Often use in combination with other sanctions. • Death Penalty • The Death Penalty Since 1920, average annual executions in U.S. dropped from 167 to 21 in early 60s. Around the world: http://en.wikipedia.org/wiki/Image:Death_Penalty_World_Map3.png Debate: Opponents say it is morally wrong for state to take life, not a deterrent, discriminatory.

9. Supporters argue that it is just retribution (eye for an eye), does deter, and discrimination is a separate issue. • 8th Amendment Standards: DP cruel and unusual? • In Furman v. GA (1972) ruled that state were administering it unconstitutionally. • Afterwards, 37 states enacted new legislation to comply and eventually, SC reversed decision with a few stipulations: • Death Penalties cannot be mandatory. • Death Penalty cases must be bifurcated (i.e., sentencing phase separate from trial phase). • Recently (2005), court raised minimum age to 18 and declared DP for mentally ill unconstitutional • Partly due to its popularity, 38 states have the DP and sufficiently addressed SC guidelines and 78% of pop is covered. B. Death-Row Inmates – 3600 on death row, mostly from the South, then West. 98.5% male, majority white, without high school diploma (52%), prior felony conviction (2 out of 3), disproportionately

10. minority (43%), median age 38. • Since reinstated in early 70s, 683 executions in 31 states; there have been over 6000 sentences of death since then, ½ of these in two states, well over 500,000 murders reported 94% of those sentenced to death since 1976 have evaded it, average time before death sentence carried out=12 years. • 2312 have had death sentences vacated or commuted by governor. • Overwhelmingly, murder convictions do not result in death penalty. Average time served for murder=10 years. • Fairness of Sentencing • Sentencing Discrimination – exists when outcomes associated with illegitimate attributes. • There is mixed evidence that racial minorities are sentenced more severely or are more likely to be sentenced. Legal factors more important than race. Conclusions from studies: no racial bias in death sentences and little evidence of overt discrimination against African-Americans in noncapital sentences.

11. Sentencing disparities – divergence in sentence length imposed for same crime without clear reasons. • Geography – it matters where you are sentenced (South harsher; 80% of executions there; Urban courts more likely to issue probation than rural). • Judge – it matters who sentences you (study shows that Fed. DC judges appointed by Dems more likely to decide for defendant. Northern judges more supportive of defendant concerns). • Increasing Consistency: justification has been to make sentencing consistent and uniform (remove judicial discretion) is good because it removes bias and undue leniency. • Sentencing guidelines have been introduced in at least 17 states (others pending). Congress also moved in this direction in 1987. • Two kinds (overall, associated with more severity): • Voluntary: nonmandatory norms of using previous sentencing patterns to determine present ones. Judges don’t tend to abide by these. • Mandatory: require judges (via legislation) to follow

12. Guidelines or mandatory minimums when considering sentence (no discretion). Judges do abide by these (see Table 9-2). • Increasing Severity of Penalties - Public wants it, legislators providing it (why, for deterrence). Example: Truth in Sentencing Laws (must serve 85% of term). • Nullification by Discretion – evidence suggests that sentencing mandates have not removed discretion but only relocated to prosecutors, police, and judges. May increase severity, but actually reduces probability of getting punished. More severe, less likely imposed. 2. Side effects: costs (longer sentences, more trials, pressure to plea bargain)