Monday, November 16, 2015

GateHouse: Prosecutorial authority: To plea or not to plea

Matthew T. Mangino
GateHouse Media
November 14, 2015
Prosecutors are the most powerful figures in the criminal justice system. The proliferation of criminal statutes along with sentence enhancements and mandatory minimum sentencing, which have recently been called into question, 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 a system dependent on the negotiated plea. In 2011, 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 eight percent in 1976. That is fewer than one in 40 felony cases—35 years ago the ratio was about one in twelve.
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 four to one; by last year, it was almost 32 to one.
Contributing to the decline in trials, is the growing number of incidents in which prosecutors have engaged in misconduct that seriously undermines the fairness of criminal trials, according to Judge Alex Kozinski of the Ninth Circuit Court of Appeals. “The misconduct ranges from misleading the jury, to outright lying in court and tacitly acquiescing or actively participating in the presentation of false evidence by police.”
“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 New York 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 necessarily in the wrong hands. The vast majority of prosecutors are ethical and fair and no other individual in the criminal justice system is better positioned to understand the nuances of a case than a prosecutor. 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.
However, with fewer and fewer trials the U.S. Supreme Court has recognized the crucial role of plea bargaining in two decisions handed down in 2012. What is interesting about the two decisions is that, on the one hand, the court acknowledged, “[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”
Yet, according to Justice Anthony M. Kennedy, “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.”
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 the form of a more lenient sentence in exchange for a plea and prevents the collapse of an overburdened system.
Yet, the absence of trial lends itself, at times, to a rush to judgement without testing the state’s ability to prove essential facts beyond a reasonable doubt.
Judge Kozinski wrote, “A legal environment that tolerates sharp prosecutorial practices” can tempt ambitious prosecutors to step over the line. Those practices can only be challenged by competent legal representation at trial and during the plea negotiation process.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
To visit the column CLICK HERE

No comments:

Post a Comment