October 9, 2011
Prosecutors are the most powerful figures in the criminal justice system. The proliferation of criminal statutes along with sentence enhancements and mandatory minimum sentencing have constricted the discretion and authority of judges and expanded the power of prosecutors.
The shift in power is no more evident than in the transition from a trial-dominated system to one dependent on the negotiated plea. Recently, the New York Times provided a host of statistics that underscored this shift. The National Center for State Courts found that the percentage of felonies taken to trial, in the nine states with available data, fell to 2.3 percent in 2009, down from 8 percent in 1976. That is fewer than one in 40 felony cases—35 years ago the ratio was about 1 in 12.
The shift is even clearer on the federal level. In 1977, the ratio of guilty pleas to criminal- trial verdicts in federal district courts was a little more than 4 to 1; by last year, it was almost 32 to one.
How do prosecutors influence the plea-bargaining process? Take a defendant arrested within 1,000 feet of a school with a sizable amount of heroin and a gun. With mandatory sentencing for a large about of heroin, enhancements for having a gun and being near a school, the defendant could theoretically face up to 12 years in prison. The defendant is offered a plea of five years or the option of trial with12 years on the line. The judge has little leverage as she is bound by law to impose the mandatory penalties as well as the enhancements.
“We now have an incredible concentration of power in the hands of prosecutors,” Richard E. Myers II, a former assistant U.S. attorney and a professor at the University of North Carolina told the Times. He reported that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”
This is not to suggest that all of that power is in the wrong hands. No other individual is better positioned to wield that power than a prosecutor. A prosecutor is keenly aware of the strengths and weaknesses of the state’s case. The prosecutor has interviewed witnesses and thoroughly examined evidence. No figure in the justice system is in a better position to evaluate a case and decide what is fair.
The U.S. Supreme Court has held that plea-bargaining is not a right protected by the Constitution. There is no substantive or procedural right to engage in plea negotiations. Even if a defendant accepted a plea offer, there is no legal entitlement to be sentenced in accordance with the agreement. A judge can reject a plea, or in some jurisdictions, impose a sentence that is not in accordance with the negotiated plea.
SUPREME COURT KEEPS MUM
The U.S Supreme Court has been reluctant to take on the plea-bargaining process. “It is a very hard question why the Supreme Court is so sensitive to creating trial rights which make trial ever more complicated and therefore unworkable on the one hand, and on the other hand so insensitive to the resulting evasion which dominates the system,” John Langben, a Yale Law Professor, told National Public Radio.
Trial has become so complicated and time-consuming that the criminal justice system would grind to a halt if every case went to trial. The plea- bargain process provides a benefit to the defendant in a more lenient sentence in exchange for a plea and prevents the collapse of an overburdened system.
The U.S. Supreme Court has, at long last, agreed to hear two cases this fall that may have an impact on plea bargaining. In Lafler v. Cooper, and Missouri v. Frye, the High Court will consider whether defendants who were not told of favorable plea offers, or were advised to reject them, may pursue claims pursuant to the Sixth Amendment for ineffective assistance of counsel.
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Michael Gargiulo, Pretrial Hearing 45
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