Study proposes getting judges involved in plea decisions

A fairer trial system requires both transparency and a shift of power away from prosecutors “into the hands of (impartial) sentencing judges,” argue the authors of a forthcoming article in Missouri Law Review, reported The Crime Report.

It isn’t an exaggeration to say the right to a fair trial in the U.S. is close to a myth, when the fate of more than 90 percent of criminal cases is determined by unrecorded conversations that take place in a courthouse hallway, according to the article, entitled Plea Bargaining: From Patent Unfairness to Transparent Justice.

The authors propose replacing the current U.S. system with a model similar to one used in Australia, where judges have a high degree of authority over sentencing, and where the high court has ruled that prosecutors cannot even make a submission regarding an appropriate sentence.

The plea bargaining in U.S. courtrooms between prosecutors and defense attorneys, which Justice Anthony Kennedy called “horse trading,” isn’t really a “negotiation” at all due to the imbalance of power on the side of prosecutors, wrote the authors–making a defendant’s decision to plead guilty a rational choice, said the authors.

“The realities of the prison and the bail system, and the nearly unfettered power reposed in prosecutors often applies considerable persuasive force to those defendants who do not have the resources to get out of jail on bail or take their cases to trial,” the article said.

In US courts, the judge is absent from the plea negotiations. Unlike trials, there are no records of the bargaining process, which happens outside the courtroom—in brief conversations between court appearances, sometimes by email, and sometimes over the phone.

Though judges can later reject a defendant’s guilty plea, “in reality, nearly all plea agreements are accepted by the courts,” wrote the authors– because the courts know very little about the case, and are under “considerable time pressures.”

The paper was written by Mirko Bagaric, Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School; Julie N. Clark, of Melbourne Law School; and William Rininger, of the University of Akron School of Law.

They propose establishing a sentencing discount of up to 30 percent to all offenders who plead guilty. Where the prosecution’s case is weak, and a defendant is “tenably innocent,” they should receive a discount of up 75 percent. This will reduce both incarceration levels and discrimination in sentencing, they argue.

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