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Foundation Briefs

Advanced Level January Brief

Resolved: In the United States, plea bargaining


undermines the criminal justice system.
January 2010 Table of Contents

Table of Contents
Table of Contents ........................................................................................................................................ 2
Using Our Brief........................................................................................................................................... 4
Topic Analysis ............................................................................................................................................ 5
General Information .................................................................................................................................... 6
Definitions................................................................................................................................................... 7
Plea Bargaining.................................................................................................................................... 7
Undermines .......................................................................................................................................... 7
Criminal Justice System ...................................................................................................................... 7
Pro Evidence ............................................................................................................................................... 8
General .................................................................................................................................................... 9
Denial of Due Process ........................................................................................................................... 12
Plea Bargaining Punishes People for Going to Trial............................................................................. 13
Plea Bargaining Forces People to give up their Rights ......................................................................... 14
Plea Bargaining Violates Equal Protection ........................................................................................... 17
Plea Bargaining Avoids the Safeguards Present to a Trial.................................................................... 19
Plea Bargaining Conceals the Truth ...................................................................................................... 20
Value of Publicity is Lost ...................................................................................................................... 22
Damaging to Innocents.......................................................................................................................... 23
Creates False Testimony ....................................................................................................................... 25
Plea Bargaining Creates Wrongful Convictions ................................................................................... 26
Wrongful Convictions do Occur ........................................................................................................... 30
Creates Negative Perceptions ................................................................................................................ 32
Poor Legal Representation .................................................................................................................... 33
Conflict of Interests ............................................................................................................................... 35
Disproportionate Power to Prosecutors ................................................................................................. 37
Stronger Charges and Punishment ........................................................................................................ 38

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January 2010 Table of Contents

System Guarantees a Guilty Plea .......................................................................................................... 40


System is Biased.................................................................................................................................... 42
Funnels People to Bad Probation System ............................................................................................. 44
Con Evidence ............................................................................................................................................ 45
General .................................................................................................................................................. 46
Innocents Do Not Plead Guilty ............................................................................................................. 47
Plea Bargains Absolutely Necessary ..................................................................................................... 48
Only way to Uphold 6th Amendment .................................................................................................... 49
Systems Struggle without Plea Bargaining ........................................................................................... 50
Allows for Proportionality .................................................................................................................... 51
Better for the System and Society ......................................................................................................... 53
Pleas are better than Flawed Trials ....................................................................................................... 54
All Parties Prefer Plea Bargaining ........................................................................................................ 55
Acts as Insurance ................................................................................................................................... 56
Contentions ............................................................................................................................................... 57
Pro Contentions ..................................................................................................................................... 58
Con Contentions .................................................................................................................................... 60
Counters .................................................................................................................................................... 62
Pro Counters .......................................................................................................................................... 63
Plea Bargains Worse than Trials ....................................................................................................... 63
System Can Function Without Pleas ................................................................................................. 63
Efficiency Does not Justify Plea Bargaining ..................................................................................... 66
Con Counters ......................................................................................................................................... 68
Plea Bargaining is not a Direct Violation of Rights .......................................................................... 68
No Right to a Public Trial by Jury..................................................................................................... 68
Plea Bargaining Does not Violate Equal Protection .......................................................................... 68
Wrongfully Pleading Guilty is not the Fault of Plea Bargaining ...................................................... 69
Wrongful Convictions are not as Prevalent as Claimed .................................................................... 69
False Testimony is Unlikely .............................................................................................................. 70

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January 2010 Using Our Brief

Using Our Brief


• Citations will appear above the evidence, not below.
• Essential information from long articles has been bulleted and bolded. Long articles without such
formatting should still be considered to be entirely relevant.
• At the end of every piece of evidence, the page number will be noted in parentheses (14). If it is
not noted, it should be assumed that the original source was also without page numbering.
• Further explanation or analysis added by Foundation Briefs will appear in red. Note, this is OUR
analysis so should not be considered part of the source.

Making the Argument


• At the end of a section (i.e. Security) will appear an “Executive Summary” or “Making the
Argument” box. These boxes include our suggestions on argumentation and strategies for
using the evidence in the corresponding section.
• If this is an Advanced Level Brief, Counters and Sample Contentions will appear at the end of
the brief, following the Con Evidence.

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November 2010 Topic Analysis

Topic Analysis
This resolution poses a significant challenge in terms of finding unique and relevant evidence on
the Con side of the debate given the justice-oriented nature of the resolution. Indeed, it seems that plea
bargaining does little to uphold pure justice for the multitude of reasons cited in the Pro evidence. That
said, the way the debate is framed can give significant ground to either side and is thus something that
you must focus on as debaters. First, with regards to the most desirable framework for an affirmative
team, the most beneficial view of the criminal justice system is one that is defined by a pursuit of pure
justice in which each man receives his due. Should you be able to establish this framework, any number
of the evidenced affirmative attacks should be sufficient to win you the round. On the other side of the
resolution, con teams must seek to get away from the strictly justice-oriented framework and establish a
goals-criterion way of looking at the criminal justice system in which one must simply prove that the
goal of the system is to maximize social welfare. Such a definition of the criminal justice system’s
purpose would allow one to introduce the efficiency arguments that surround plea bargaining as they
factor into the cost-benefit analysis that must be undertaken to affirm or negate such a stance on the
justice system. In short, the con side would argue that by minimizing the costs of achieving justice, plea
bargaining has the best cost-benefit ration and thus maximizes social welfare. Under this argument, the
con could also bring in the ideas of proportionality and preference by all parties to prove that plea
bargaining does indeed uphold a socially acceptable form of justice.

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November 2010 Topic Analysis

General Information
Berend, Laura. "LESS RELIABLE PRELIMINARY HEARINGS AND PLEA BARGAINS IN
CRIMINAL CASES IN CALIFORNIA: DISCOVERY BEFORE AND AFTER
PROPOSITION 115." American University Law Review (No Date given). Web. 15 Dec.
2010. <www.wcl.american.edu/journal/lawrev/48/pdf/berend.pdf>.

During the time period October 1, 1994 - September 30, 1995, 91.9% of all federal criminal convictions
involved a guilty plea (4)

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November 2010 Definitions

Definitions
Plea Bargaining

Larson, Aaron. "Plea Bargains." Expert Law. Web. 15 Dec. 2010.


<http://www.expertlaw.com/library/criminal/plea_bargains.html>.

A "plea bargain" is a deal offered by a prosecutor as an incentive for a defendant to plead guilty. Plea
bargains can be either based on charge bargaining or sentence bargaining.

A "charge bargain" occurs when the prosecutor allows a defendant to "plead guilty to a lesser charge,"
or to only some of the charges that have been filed against him. For example, a defendant charged with
burgarly may be offered the opportunity to plead guilty to "attempted burglary."

A "sentence bargain" occurs when a defendant is told in advance what his sentence will be if he pleads
guilty. This can help a prosecutor obtain a conviction if, for example, a defendant is facing serious
charges and is afraid of being hit with the "maximum" sentence. Typically, sentence bargains can only
be granted if they are approved by the trial judge. Many jurisdictions severely limit sentence bargaining.

Please note: Simply pleading guilty is not necessarily a plea bargain. Plea bargaining entails negotiation
between the two parties.

Undermines

Merriam Webster Dictionary—To weaken by wearing away a base or foundation

Criminal Justice System

North Dakota State University

Criminal justice is the system of practices and institutions of governments directed at upholding social
control, deterring and mitigating crime, and sanctioning those who violate laws with criminal penalties
and rehabilitation efforts.

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Pro Evidence

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January 2010 Pro: General

General
Lynch, Timothy. "The Case Against Plea Bargaining." Regulation. CATO Institute, Fall 2003.
Web. 9 Dec. 2010.

Thomas Jefferson famously observed that “the natural progress of things is for liberty to yield and
government to gain ground.” The American experience with plea bargaining is yet another confirmation
of that truth. (27)

Bright, Stephen. "The Plea: Interview Stephen Bright." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law at Yale and Harvard Universities and director of the Southern Center for Human
Rights.

It seems to me that one of the most fundamental things in our society, besides education, is justice and
we ought to have a justice system that people have faith in and that has credibility. The Supreme Court
building says "Equal justice under law." That's not true. The criminal courts of this land are like
stockyards in which people are just processed through like cattle on their way to slaughter. That's not
equal justice. It's not individualized justice. It's not really justice at all.

Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law and legal history at Yale Law School.

What is wrong with the plea bargain system in our courts today?
Plea bargaining is a system that is best described as one of condemnation without adjudication. It is a
system that replaces trial, which is what our constitution intended, with deals.
Second, those deals are coerced. The prosecutor is basically forcing people to waive their rights to jury
trial by threatening them with ever greater sanctions if they refuse to plead and instead demand the right
to jury trial.

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January 2010 Pro: General

Roberts, Paul C. "The Growing Problem Of Wrongful Conviction." The Independent Review.
VDare, 15 Apr. 2003. Web. 14 Dec. 2010.
<http://www.vdare.com/roberts/independent_review.htm>.

Plea bargains have corrupted the justice system by creating fictional crimes in place of real ones. The
practice of having people admit to what did not happen in order to avoid charges for what did happen
creates a legal culture that elevates fiction over truth. By making the facts of the case malleable, plea
bargains enable prosecutors to supplement weak evidence with psychological pressure. Legal scholar
John Langbein compares “the modern American plea bargaining system” with “the ancient system of
judicial torture” (1978, 8). Many innocent people cop a plea just to end their ordeal. Confession and self-
incrimination have replaced the jury trial. Just as Bentham warned, torture has been resurrected as a
principal method of conviction. As this legal culture now operates, it permits prosecutors to bring
charges in the absence of crimes.

Kinsley, Michael. "Why Innocent People Confess." Slate Magazine. 12 Dec. 2002. Web. 14 Dec.
2010. <http://www.slate.com/id/2075319/>.

In 1978 Professor John Langbein, now of Yale Law School, wrote a dazzling and soon-famous article in
the Public Interest called "Torture and Plea Bargaining." Langbein compared the modern American
system of plea bargaining to the system of extracting confessions by torture in medieval Europe. In both
cases, the controversial practice arose not because standards of justice were too low, but because they
were too high. In medieval Europe, a conviction for murder required either two eyewitnesses or a
confession by the perpetrator. This made it almost impossible to punish the crime of murder, which was
an intolerable situation. So, torture developed as a way to extract the necessary confessions.
Plea bargaining evolved the same way, Langbein explained. As our official system of justice
became larded with more and more protections for the accused, actually going through the process of
catching, prosecuting, and convicting a criminal the official way became impossibly burdensome. So,
the government offered the accused a deal: You get a lighter sentence if you save us the trouble of a
trial. Or, to put it in a more sinister way: You get a heavier sentence if you insist on asserting your
constitutional rights to a trial, to confront your accusers, to privacy from searches without probable
cause, to avoid incriminating yourself, etc.
Essentially, 95 percent of American criminal defendants are tried under a system entirely
different from the one we learn about in school and argue about in politics (liberals celebrating its noble
protections, conservatives bemoaning its coddling of criminals). In this real American justice system,
your constitutional rights are worth, at most, a few years off your sentence.

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January 2010 Pro: General

Berend, Laura. "LESS RELIABLE PRELIMINARY HEARINGS AND PLEA BARGAINS IN


CRIMINAL CASES IN CALIFORNIA: DISCOVERY BEFORE AND AFTER PROPOSITION
115." American University Law Review (No Date given). Web. 15 Dec. 2010.
<www.wcl.american.edu/journal/lawrev/48/pdf/berend.pdf>.

Pro:
The purpose of the criminal justice system is often described as a “search for the truth”
in order to convict the guilty and free the innocent. (4)

The search for “legal truth” is intended to culminate in a trial that is designed to recreate an event (6)

The criminal justice system employs the adversarial process as the method for ascertaining “legal truth.”
(7)

Our reason for including the above definition and information is to help in the establishment of the
correct framework. Indeed, if you can establish that the debate is over whether or not plea bargaining
helps “convict the guilty and free the innocent” and then provide the evidence surrounding wrongful
convictions and prosecutions, the debate should be yours.

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January 2010 Pro: Denial of Due Process

Denial of Due Process


Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Albert Alschuler is a professor of law and criminology at the University of Chicago.

I think it's hard to imagine a clearer denial of due process than sending someone to prison who hasn't
been tried and who hasn't admitted his guilt. But the Supreme Court of the United States says that's OK.
…[However,] a great many judges do not accept these Alford pleas, and do insist on a confession from
the defendant. … But it's usually a hypocritical show. It's a coerced confession. The defense lawyer goes
out and confers with his client and gets his lines right. They go back in and they put on a better show for
the judge, and the judge accepts the plea. … You can sort of satisfy your conscience with this salve of "I
made him say he did it." And he's saying, "Well, OK, you son of a bitch, if I've got to say I did it to take
the deal, I'll say it. Do you feel better now?"

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January 2010 Pro: Punishment for Trial

Plea Bargaining Punishes People for


Going to Trial
Lynch, Timothy. "The Case Against Plea Bargaining." Regulation. CATO Institute, Fall 2003.
Web. 9 Dec. 2010.

Plea bargaining rests on the constitutional fiction that our government does not retaliate against
individuals who wish to exercise their right to trial by jury. Although the fictional nature of that
proposition has been apparent to many for some time now, what is new is that more and more people are
reaching the conclusion that it is intolerable. Chief Judge William G. Young of the Federal District
Court in Massachusetts, for example, recently filed an opinion that was refreshingly candid about what
is happening in the modern criminal justice system: Evidence of sentencing disparity visited on those
who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible.…
Today, under the Sentencing Guidelines regime with its vast shift of power to the Executive, that
disparity has widened to an incredible 500 percent. As a practical matter this means, as between two
similarly situated defendants, that if the one who pleads and cooperates gets a four-year sentence, then
the guideline sentence for the one who exercises his right to trial by jury and is convicted will be 20
years. Not surprisingly, such a disparity imposes an extraordinary burden on the free exercise of the
right to an adjudication of guilt by one’s peers. Criminal trial rates in the United States and in this
District are plummeting due to the simple fact that today we punish people—punish them severely —
simply for going to trial. It is the sheerest sophistry to pretend otherwise. (26-27)

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January 2010 Pro: People Forced to Forgo Rights

Plea Bargaining Forces People to give up


their Rights
Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Albert Alschuler is a professor of law and criminology at the University of Chicago.

[The plea bargaining system is] inconsistent with the law that we apply to waivers of other rights. What
do you suppose would happen if a prosecutor said to a defendant, "Well, you can exercise your right to
be represented by a lawyer. But if you're convicted with a lawyer representing you, we'll give you 10
years, and if you represent yourself, we'll give you five."

Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

But every defendant has a right to go to trial; it's a choice they make to plead guilty.
The problem with choice arguments is that they neglect the main dynamic of plea bargaining which is
the pressure that the prosecutor puts on you to do it his way. Plea bargain works by threat. What the
prosecutor says to a criminal defendant in plea bargaining is, "Surrender your right to jury trial, or if you
go to trial and are convicted of an offense, we will see to it that you are punished twice. Once for the
offense, and once for having had the temerity to exercise your right to jury trial." That is a coercive
system. And the prosecutor has many devices which increase the level of coercion: multiplying the
counts, threatening to recommend the most severe end of the sentence range, keeping you locked up in
pretrial detention if you're poor -- most people who are in the criminal justice system are poor --
prosecuting your wife as well as yourself, and things of this sort. The prosecutor can pile it on if you
don't play it his way. It is therefore a deeply coercive system. Yes, you have a choice, but your choice is
constrained by coercion.

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January 2010 Pro: People Forced to Forgo Rights

Abrams, Howard E. Systemic Coercion: Unconstitutional Conditions in the Criminal Law. Rep.
Journal of Criminal Law and Criminology, 1981. Print.

Recent decisions have constitutionalized and expanded the rights of criminal defendants to the
point where if one in five defendants demanded all such rights, our criminal justice resources would
be exhausted. Our formal, elaborate criminal adjudicatory process is perceived as inadequate for use by
more than a small percentage of those charged with crimes. Most defendants must be persuaded to
waive their rights, and the only way to elicit a waiver from a rational defendant is make it in his
interest not to assert his right.

Covey, Russel. Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining.
Rep. Georgia State University, 2000. Print.

How, then, does the system manage to induce so many defendants to relinquish their trial rights and
accept guilty pleas in light of the strong cognitive preference to do precisely the opposite?33 In short, by
every means possible. All things being equal, cognitive biases may well impel defendants to opt for trial,
but things are far from equal. The criminal justice system contains numerous levers to induce defendants
to abandon their right to trial and to accept a guilty plea, and its evolution has tended, with few
exceptions, to expand and strengthen these levers.

As Birke pointed out, one explanation for why loss-averse criminal defendants plead guilty in such great
numbers is that they are consistently getting such "good deals"-that is, plea bargains in which the "utility
value of the plea" is so much higher than that of trial that even loss-averse defendants cannot say no.

As numerous first-hand accounts of the criminal justice system attest, even if defendants manage to
make bail or are released on their own recognizance before trial, the costs of contesting a criminal
charge can be astounding. Tedious lines to get through courthouse security, interminable waiting for
cases to be called,"° strict limitations on what can be brought into the courtroom (e.g., no food, no
reading materials to diminish the tedium), and seemingly endless continuances (that require working
defendants and accompanying family members to burn up vacation and sick days, incur repeated transit
costs, and require childcare arrangements to be made and paid for, etc.) can make the cost of fighting a
criminal charge appear greater than the cost of pleading guilty. All of these process costs conspire to
dissuade defendants from exercising their right to a trial. These high process costs explain why almost
every misdemeanor defendant, in the end, resolves his case with a guilty plea. Where "the process is the
punishment," minimizing process is the best way to minimize punishment. Pleading guilty is almost
always the best route to truncating the process. High process costs also undoubtedly contribute to the
high plea rate in felony cases. (Pg. 28)

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January 2010 Pro: People Forced to Forgo Rights

Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

But, again, the trial is there for anyone who chooses that option.
It is true that one always has the right to go to trial, but the prosecutor can make that right so costly that
only a fool will exercise the right. … Any of us will plead guilty if the disparity between what we're
threatened with if we go to trial and lose, and what we get if we don't is increased enough…
Part of the reason why we in this country have criminal sentences that are so much more severe than in
the rest of the civilized world, is the need that prosecutors have to threaten people with these huge
sentences in order to get them to waive the right to jury trial. So there is a linkage between the notorious
severity of our criminal law and the plea bargaining system. We have to have these perverse sentences
as a threat in order to get people to waive the right to jury trial and take something less. …

It is very sad that the Supreme Court, which has been so anxious to protect various rights of persons who
go to trial, has been so cowardly about seeing the evils of the plea bargaining process. … The Supreme
Court has been … indifferent to the pressures on accused in the plea bargaining process, as exemplified
by the famous Alford case, where the fellow actually stood up and said, "I'm innocent, but I'm pleading
because the disparity of outcome that they're threatening me with is too great." It's terribly sad.

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January 2010 Pro: Violates Equal Protection

Plea Bargaining Violates Equal


Protection
Lynch, Timothy. "The Case Against Plea Bargaining." Regulation. CATO Institute, Fall 2003.
Web. 9 Dec. 2010.

Imagine four people who are charged with auto theft. One defendant pleads guilty to the offense and
receives three years of jail time. The second defendant insists upon a trial, but sells his right to call his
own witnesses. After conviction, he receives four years. The third defendant insists on a trial, but sells
his right to be represented by his famous attorney-uncle, F. Lee Bailey. Instead, he hires a local attorney
and, in addition, sells his right to a speedy trial. After conviction, he receives five years. The fourth
insists upon a trial, presents a rigorous but unsuccessful defense and, after conviction, receives a prison
sentence of 10 years. Are the disparate punishments for the same offense sensible? The courtroom just
does not seem to be the proper place for an auction and haggling. (27)

Sandefur argues that, in such cases criminal defendants are not being punished for a refusal to bargain;
they are instead being punished for “violating the law.” According to Sandefur, the tourists have no right
to complain because they have no “right to leniency.” That line of argument has surface appeal, but it is
defective. The logical fallacy of division says that what may be true for the whole is not necessarily true
for the parts. Thus, a prosecutor can indeed “throw the book” at any given tourist. However, if it came to
light that the prosecutor was targeting, say, Hispanics for harsher treatment, we would know that
something was very wrong. The retort that Hispanic arrestees do not have a “right to leniency” would be
an unsatisfying defense of the prosecutor’s handling of such cases. Plea bargaining tactics fail for
similar, though perhaps more subtle, reasons. Just because the state can throw the book at someone does
not mean that it can use its power to retaliate against a person who wishes to exercise his right to a trial.
(27)

Sandefur’s defense of plea bargaining repeatedly returns to the idea that criminal defendants have the
“right to make a contract,” as in other free-trade situations. But plea bargaining is not free trade. It is a
forced association. Once a person has been charged with a crime, he does not have the option of walking
away from the state. (27)

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January 2010 Pro: Violates Equal Protection

Abrams, Howard E. Systemic Coercion: Unconstitutional Conditions in the Criminal Law. Rep.
Journal of Criminal Law and Criminology, 1981. Print.

The equal protection clause of the fourteenth amendment requires that persons similarly situated be
similarly treated. Systemic coercion by its very nature…denies a certain benefit. Two defendants
identical in every respect save that one demands his constitutional due are thus treated differently.
Equal protection under the laws demands that the government justify the disparity.

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January 2010 Pro: Avoids Trial Safeguards

Plea Bargaining Avoids the Safeguards


Present to a Trial
Lynch, Timothy. "The Case Against Plea Bargaining." Regulation. CATO Institute, Fall 2003.
Web. 9 Dec. 2010.

The rarity of jury trials is not the result of criminals who come into court to relieve a guilty conscience
or save taxpayers the costs of a trial. The truth is that government officials have deliberately engineered
the system to assure that the jury trial system established by the Constitution is seldom used. And plea
bargaining is the primary technique used by the government to bypass the institutional safeguards in
trials. (24)

Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard
Law Review, 2004. Print.

Another reason why plea results diverge from likely trial outcomes is that plea bargaining is hidden from
public view. First, plea bargaining is a secret area of law, unlike trials, which have clear rules. In plea
bargaining, it is easier for inexperienced lawyers to fall afoul of unwritten norms by pushing too hard,
not hard enough, or not in the right way. The paucity of hard legal rules also leaves more room for
favoritism, favor-seeking, and connections to operate. (Pg. 14)

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January 2010 Pro: Truth Concealed

Plea Bargaining Conceals the Truth


Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Albert Alschuler is a professor of law and criminology at the University of Chicago.

Well, it's a system that's designed to keep the truth from coming out. We don't care enough in the
American criminal justice system to listen to the defendant's story. We do everything possible to avoid
having an impartial party sit there and hear both sides and decide who's telling the truth.
We have a system that makes the defendant half guilty. There's a 50 percent chance that he'll be
convicted at trial. Let's give him 50 percent of the sentence he would have if he were really guilty, so it's
half guilty.

Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>

Under present law, criminal defendants have little right to obtain meaningful pre-plea discovery. Unlike
civil discovery, the "criminal discovery rules are not designed to inform a defendant fully of the case
against him." In busy urban systems, what discovery defendants do obtain often amounts to little more
than the police reports describing their alleged crimes. Even where significant discovery is mandated,
the law often does not require that it be provided prior to guilty plea hearings. Brady v. Maryland, for
instance, requires prosecutors to turn over material exculpatory evidence at or before trial, but omits any
mention of a requirement to provide exculpatory evidence prior to entry of a guilty plea. As a result, the
scope of prosecutorial obligations to produce such discovery during plea bargaining remains in doubt.
(Pg. 88-89)

Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard
Law Review, 2004. Print.

For example, defense lawyers without connections to prosecutors may be at a disadvantage in


persuading prosecutors to give them informal discovery. The defendant may not have the money to hire
a private investigator. Or, the defendant may be innocent and thus have no private knowledge of the
evidence of guilt. The danger that bluffing, fear, or ignorance will skew innocent defendants’ bargaining
is one of the most palpable injustices of plea bargaining. (Pg. 33)

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January 2010 Pro: Truth Concealed

Roberts, Paul C. "The Growing Problem Of Wrongful Conviction." The Independent Review.
VDare, 15 Apr. 2003. Web. 14 Dec. 2010.
<http://www.vdare.com/roberts/independent_review.htm>.

Every law, regulation, or reform has unintended consequences. A case can be made that the exclusionary
rule changed the culture of the criminal justice system and led to the coerced plea bargain. By releasing
criminals known to be guilty, the exclusionary rule turned the criminal justice system into a lottery for
police, prosecutors, and criminals alike. The result was demoralized prosecutors who began to see in the
plea bargain a way to game the system back toward conviction. The unintended consequence of the
exclusionary rule was cultural change. The criminal justice system deemphasized pursuit of the truth and
focused on convicting the defendant.

Covey, Russel. Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining.
Rep. Georgia State University, 2000. Print.

Current discovery rules enhance the prosecutor's ability to demonstrate the strength of her case and hide
its weaknesses, which in turn makes it easier to sell plea bargains to overconfident and egocentric
buyers. (Pg. 26)

Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Defendants pleading guilty often indicate remorse for the crime.


That's one of the standard excuses that are given by apologists for the system. Plea bargaining is
sometimes justified on the ground that we are giving a lighter sentence to someone who is showing
contrition or remorse for the offense. But that's a pack of lies. What is in fact happening is that the
accused is being told by the prosecutor, "You accept guilt and confess and bear false witness against
yourself and we will then see to it that it gets characterized as contrition or remorse." The point is that
the coercion, which eliminates trial, eliminates our ability to know you were in fact beyond reasonable
doubt, guilty or not. And therefore it makes the remorse talk just window dressing by apologists who
want to keep this existing system which is convenient for them.

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January 2010 Pro: Value of Publicity Lost

Value of Publicity is Lost


Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

One of the saddest things about plea bargaining is that it is not widely understood. Most people have the
television model of Perry Mason or somebody similar contesting for a verdict of a jury. Moreover, when
plea bargaining actually happens, it's always out of sight. And as a result, not only does plea bargaining
replace the constitutional requirement of trial with a deal, but plea bargaining attacks another feature of
the constitutional design. What the Bill of Rights, the Sixth Amendment calls for is public jury trial, and
plea bargaining is not public. It's secret. The evidence does not come out in public. It's not ventilated in
public. And the public doesn't really know what happened. That causes very great disquiet in some
cases; the most famous I think is the prosecution of James Earl Ray, the purported slayer of Dr. Martin
Luther King. The plea bargain in that case resulted in no public ventilation of the evidence, and there has
been a lingering suspicion for decades that the case involved a wider plot than what was acknowledged,
but the evidence doesn't come out. So part of what we lose in the plea bargaining process is not only the
rights of the innocent accused, but we're also losing the very important benefit of publicity associated
with a trial tradition. …The single defining characteristic of the criminal law in the theoretical,
philosophical understanding is the condemnatory force of the criminal sanction. It's not simply that we
lock you up. We lock up people who have tuberculosis. The important difference is we lock you up in
circumstances in which we condemn you. The judge says you have wronged society. Plea bargaining
devastates the condemnatory force of the criminal sanction because those sanctions are now applied
without adjudication. That judge has not examined the question of whether you are guilty or innocent.
What has happened is that you have been threatened enough that you waive your right to have that
adjudication. …

foundationbriefs.com Page 22 of 70
January 2010 Pro: Damaging to Innocents

Damaging to Innocents
Green, Bruce. "The Plea: Interview Bruce Green." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham
University.

The worst thing you can be, I think, is an innocent person in prison, because not only have you been
wrongfully convicted, but now when you come up for parole, your possibility for parole is much lower
because the parole board basically expects that you will be contrite, which means you admit your guilt
and have grown psychologically in some way so that you're no longer a threat to society. Now that's fine
for people who actually did the crime. But for people who are innocent, they're in a terrible predicament
because if they admit their guilt, they're basically lying and doing something that they don't want to do.
And on the other hand, if they don't do that, they have to serve their full jail time when other people who
were guilty of crimes would be eligible for parole. It's a terrible system.

On the other hand, in a system where prosecutors are cavalier, are basically taking the cases as presented
to them by the police, charging them and then offering very dramatic inducements to plead guilty, a high
number of guilty pleas is problematic because we know that a fair number of those guilty pleas are going
to be cases where the defendant was actually innocent…

Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>.

Plea bargaining has an innocence problem. The dominant theoretical model of plea bargaining— so-
called "trial shadow theory"—predicts that, once charged, innocent and guilty persons alike almost
always act rationally by pleading guilty rather than contesting guilt at trial. (Pg. 74)
Take, for instance, a defendant’s honest but unverifiable belief that she is factually innocent of the crime
charged. Although seemingly a highly salient piece of information, such private information cannot
affect plea prices if the defendant has no way to communicate the information to the prosecutor or a
jury. As a result, defendants who know they are innocent would appear to do no better in plea
bargaining than defendants who know they are guilt (Pg. 75)

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January 2010 Pro: Damaging to Innocents

Gazal-Ayal, Oren. Partial Ban on Plea Bargains. Rep. 5th ed. Vol. 27. Cardozo Law Review, 2008.
Print.

When plea bargaining is available, the prosecutor can reach a guilty plea in almost every case, even a
very weak one. When the case is weak, meaning when the probability that a trial would result in
conviction is relatively small, she can assure a conviction by offering the defendant a substantial
discount—a discount big enough to compensate him for foregoing the possibility of being found not
guilty. Knowing that gaining convictions in weak cases is not difficult, the prosecutor cares less about
the strength of the cases she brings. As a result, she is more likely to prosecute weak cases where
defendants are more likely to be innocent. Given that the innocent defendant is prosecuted, he might
realize that he is better off accepting a plea bargain offer. At that stage, the offer cannot harm him. The
point is that the defendant would have been much better off if the prosecutor had not been able to offer
him a plea bargain in the first place because then she probably would not have charged him at all. (Pg. 7)

Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>

Plea bargaining is part of a complex system of criminal justice with dynamic and interdependent parts;
its outcomes are a product of a wide array of factors, including draconian sentencing schemes and
enormous prosecutorial charge discretion that may create fundamental bargaining disparities and, as a
result, unfair bargains. An additional source of unfairness, however, is implicit in the basic economic
model underpinning plea bargaining: The risk that bargaining, which occurs in the shadow of trials,
misprices the guilty pleas of innocent defendants. Plea bargaining’s pricing model misprices pleas in
part because it fails to incorporate a critically important piece of information—the defendant’s
subjective knowledge of guilt or innocence—into the pricing mechanism. (Pg. 130)

Gross, Samuel R. Lost Lives: Miscarriages of Justice in Capital Cases. Rep. 4th ed. Vol. 61. Law
and Contemporary Problems, 1998. Print.
Threat is an essential part of all plea bargaining: Take the deal or you’ll do worse after conviction. There
is, undeniably, a coercive aspect to this bargain—the defendant must risk a severe penalty in order to
exercise his right to trial—and plea bargaining has been strongly criticized on that ground. One attack is
that the threat is so effective that it drives some innocent defendants to plead guilty along with the mass
of guilty ones.

foundationbriefs.com Page 24 of 70
January 2010 Pro: False Testimony

Creates False Testimony


McMunigal, Kevin. "Defense Counsel and Plea Bargain Perjury." OHIO STATE JOURNAL OF
CRIMINAL LAW 7 (Spring 2010): 653-58. Web. 15 Dec. 2010.
<moritzlaw.osu.edu/osjcl/Articles/Volume7_2/McMunigal-FinalPDF.pdf>.

Although a number of participants in our adversary system are responsible for detecting perjury in a
cooperating witness scenario, DNA exonerations and subsequent investigations have shown that those
participants have failed to prevent informant perjury from corrupting verdicts in a shocking number of
cases. False testimony from cooperating witnesses seeking reduced prison sentences, such as the client
in our hypothetical, has repeatedly been identified as contributing to wrongful convictions, suggesting
that prosecutors and police have failed to detect such perjury, defense counsel have failed to expose such
perjury through cross-examination and other impeachment techniques, and jurors have failed to identify
and ignore such perjury. (657)

foundationbriefs.com Page 25 of 70
January 2010 Pro: Wrongful Convictions

Plea Bargaining Creates Wrongful


Convictions
"Wrongful Convictions on the Rise." Truth in Justice. Web. 14 Dec. 2010.
<http://truthinjustice.org/ontherise.htm>.

The broader issue is the high rate of wrongful conviction. Moreover, wrongful conviction is not
confined to capital offenses. If the justice system cannot convict the right person in murder cases, or
convict the defendant lawfully according to the rules, how can we have any confidence that police and
prosecutors are doing better when it comes to burglary, white-collar criminals, and drug dealers? These
convictions do not receive the scrutiny that capital offenses receive. Most result from plea bargains, and
plea bargains are seldom subject to appeal even when the defendant is coerced.

Vedantam, Shanker. "Psychological Experiments Show Even Healthy People Confess When They
Did Nothing Wrong." Idaho Statesmen. 2 Nov. 2007. Web. 14 Dec. 2010.
<http://www.idahostatesman.com/2007/10/02/172974/psychological-experiments-
show.html>.

"Innocence is a state of mind that puts innocent people at risk," said psychologist Saul Kassin at
Williams College, who has studied the phenomenon. Innocent people, Kassin found, are more likely to
waive their constitutional rights to remain silent and to have a lawyer present. Innocent people also
assume that innocent people do not get convicted, or that objective evidence will exonerate them. Nearly
a quarter of all convictions overturned in recent years based on DNA and other evidence have involved
false confessions

In one experiment, Kassin asked volunteers to perform a challenging task on a computer but warned
them not to touch the "Alt" key or risk damaging a computer. Volunteers were told that the computer
had been damaged and were asked whether they hit the banned key. In reality, the volunteer did nothing
wrong. Most volunteers denied it, but as the initial task they were given was made difficult, they became
less sure because they were distracted. When researchers had confederates lie about having seen the
volunteers hit the Alt key, the number of people who confessed went up to 100 percent. Every stage of
increased pressure led ever larger numbers of volunteers to believe they were really guilty.

foundationbriefs.com Page 26 of 70
January 2010 Pro: Wrongful Convictions

Gazal-Ayal, Oren. Partial Ban on Plea Bargains. Rep. 5th ed. Vol. 27. Cardozo Law Review, 2008.
Print.

Introducing plea bargaining influences the prosecutor’s choice of cases in various ways. Most
importantly, it substantially reduces the resources needed for each case.43 Plea bargains are not only
cheaper than trials, they are much cheaper.44 In the absence of plea bargaining, the prosecutor can
pursue a certain group of defendants (Group A); with plea bargaining, she can prosecute a much larger
group of defendants (Group B). Naturally, as the number of total prosecutions rises, so will the number
of prosecuted innocents.45 However, it is not the number but the proportion of innocent defendants that
matters. Reducing the number of wrongful prosecutions just by reducing the number of total
prosecutions makes no more sense than arbitrarily exonerating a random number of inmates, since some
of them are likely to be innocent. The fact that Group B is bigger cannot justify a preference for Group
A. Thus, the important question is whether the proportion of innocent defendants in Group B is higher
than in Group A. Contrary to the arguments of some,47 there is a good reason to answer that question in
the affirmative. Group A contains the cases with the highest expected values per resources. When plea
bargains increase the prosecutor’s capacity, she has to choose additional cases to which she attaches a
lower grade. On average, these Group B cases will be more expensive, create lower post-conviction
value and, most importantly, will be weaker than the cases in Group A. This does not mean, however,
that each case in Group B is weaker than every case in Group A. A prosecutor can sometimes give a
weaker case a higher grade than a stronger one, because the conviction in the former is more important
to her, or because prosecuting it is less expensive. But since the probability of conviction is one of the
factors that influence the choice of cases, the cases in Group B will be, on average, weaker than those in
Group A. Because the cases are on average weaker, the proportion of innocent defendants in Group B is
higher than in Group A. If trials have anything to do with revealing guilt, the strength of a case is
necessarily correlated with the probability that the defendant is guilty. Therefore, allowing plea
bargaining increases the proportion of wrongful prosecutions.(Pg. 17)

Moreover, convicting the innocent is wrong, regardless of the sentence. Society bears a “moral cost”
whenever an innocent person is convicted.92 Increasing the risk of wrongful convictions makes even
less sense in an overburdened criminal justice system, where every weak case can be easily replaced by
a strong case that can be settled without raising the same concerns. Thus, rounding down the punishment
to zero when the case is weak is the moral and efficient thing to do. Weak cases should be dismissed, not
settled. (Pg. 29-30)

Yet, it is argued that even if defendants make rational decisions, the plea bargaining system increases the
risk of wrongful convictions. With plea bargaining, prosecutors can extract a guilty plea in almost any
case, regardless of the real culpability of the defendant. They merely have to offer each defendant a
settlement he prefers to trial. Only very rarely is the highest acceptable sentence of a defendant zero; in
fact many innocent defendants are willing to accept minor punishment in return for avoiding the risk of
a much harsher trial result. (Pg. 10)

In all these cases, an innocent defendant might accept the offer in order to avoid the risk of a much
harsher result if he is convicted at trial, and thereby plea bargaining could very well lead to the
conviction of factually innocent defendants. (Pg. 12)
foundationbriefs.com Page 27 of 70
January 2010 Pro: Wrongful Convictions

Roberts, Paul C. "The Growing Problem Of Wrongful Conviction." The Independent Review.
VDare, 15 Apr. 2003. Web. 14 Dec. 2010.
<http://www.vdare.com/roberts/independent_review.htm>.

Plea bargaining is a major cause of wrongful conviction. First, plea bargains undermine police
investigative work. Because few cases go to trial, police have learned that their evidence is seldom
tested in the courtroom. Carelessness creeps in. Sloppy investigations are less likely to lead to
apprehension of the guilty party. Second, plea bargaining greatly increases the number of cases that can
be prosecuted. Prosecutors have found that they can coerce a plea and elevate their conviction rate by
raising the number and seriousness of the charges that they throw at a defendant. Counsel advises
defendants that conviction at trial on even one charge can carry more severe punishment than a plea to a
lesser charge. The sentencing differential alone is enough to make plea bargaining coercive.

Kinsley, Michael. "Why Innocent People Confess." Slate Magazine. 12 Dec. 2002. Web. 14 Dec.
2010. <http://www.slate.com/id/2075319/>.

Plea bargaining might also be thought of as an insurance policy. Insurance is a way of trading the risk of
a large bad outcome (your house burns down and you're out $100,000) for the certainty of a smaller bad
outcome (a bill arrives and you're out $850). Plea bargaining is a way of trading the risk of 20-years-to-
life for the certainty of five-seven. But by creating this choice, and ratcheting up the odds to make it
nearly irresistible, American justice virtually guarantees that innocent people are being punished.

Huff, Ronald. "Wrongful Conviction: Causes and Public Policy Issues." Criminal Justice
Magazine 18.1 (Spring 2003). American Bar Association. Web. 14 Dec. 2010.

In societies that value the freedom of their citizens and have done so much to protect that freedom, it is
arguable that being convicted of a crime that one did not commit, and being incarcerated with criminals
or even put to death, represents one of the worst nightmares imaginable. And yet, when we consider the
two major types of errors—false positives and false negatives—we find much more preoccupation with
the question of the guilty going free, probably because of the public safety implications of freeing a
criminal, who might then victimize others. The irony, of course, is that these two errors are inversely
related, and every time we convict an innocent person we leave the actual offender free to continue
victimizing citizens. Therefore, although the issue of wrongful conviction is generally portrayed as a so-
called liberal issue focusing on the rights of the accused, it is every bit as much an issue that affects
public safety and should be of equal concern to so-called law-and-order conservatives.

foundationbriefs.com Page 28 of 70
January 2010 Pro: General

McMunigal, Kevin. "Defense Counsel and Plea Bargain Perjury." OHIO STATE JOURNAL OF
CRIMINAL LAW 7 (Spring 2010): 653-58. Web. 15 Dec. 2010.
<moritzlaw.osu.edu/osjcl/Articles/Volume7_2/McMunigal-FinalPDF.pdf>.

As reflected most clearly in our use of the “beyond reasonable doubt” standard of proof in criminal
trials, we do not and should not view an erroneous conviction and an erroneous acquittal as equal in
significance. Rather, conviction of an innocent person is a much more serious error than acquittal of a
guilty person, a judgment that DNA exonerations throughout the country have dramatically illustrated
and reinforced. (654)

foundationbriefs.com Page 29 of 70
January 2010 Pro: Wrongful Convictions

Wrongful Convictions do Occur


Huff, Ronald. "Wrongful Conviction: Causes and Public Policy Issues." Criminal Justice
Magazine 18.1 (Spring 2003). American Bar Association. Web. 14 Dec. 2010.

Based on the responses to our survey, we used 0.5 percent as our estimate. If our "panel of judges" is
correct, this means that the U.S. criminal justice system might be accurate in about 99.5 percent of the
cases of felony conviction. That suggests, perhaps, a level of accuracy that might inspire great
confidence. However, one’s perspective on the magnitude of the problem might change when one
considers the overall volume of cases processed through the U.S. criminal justice system. For example,
in the year 2000 there were 2.2 million arrests in the United States for index crimes alone. We also know
that about 70 percent of those arrested for felonies are ultimately convicted of either a felony or a
misdemeanor. This means that if we assume that the system was 99.5 percent accurate in those cases and
made errors in only one-half of 1 percent (0.5 percent) of those convictions, that rate of error would have
produced about 7,500 wrongful convictions among those 2.2 million arrested for index crimes. So a
small error rate in a very large system can result in thousands of miscarriages of justice and allow many
of the criminals who actually committed those crimes to remain free to victimize others.

In fact, the governor of Illinois declared a moratorium on the death penalty in that state following a
period of time in which more death row inmates had been exonerated than had been executed. (In a
highly controversial move, Governor George Ryan commuted all Illinois death sentences to life in
prison just shortly before he left office in January 2003. Four inmates were pardoned and released.)
Recently, in 18,000 criminal cases where biological evidence was available, DNA testing excluded more
than 25 percent of prime suspects. We also know that in 25 years of experience with the death penalty,
553 persons were executed while 80 were released and had their sentences vacated, suggesting the
possibility of a significant error rate. And finally, a recent study of capital cases that spanned more than
20 years raised the possibility of an even higher incidence of error.

In our own database of nearly 500 cases, eyewitness error was involved in nearly 60 percent of the
cases. Such cases include those where there is a close resemblance between the actual offender and the
innocent defendant, and some where the accused person bears little if any resemblance to the actual
criminal—such as a foot difference in height or being of a different racial/ethnic heritage. Unfortunately,
although experts and judges increasingly share the view that eyewitness identification of a suspect
previously unknown to the victim/witness is highly suspect and perhaps the least reliable kind of
evidence, jurors still tend to attach special importance to such identification and see the testimony of
eyewitnesses as powerful. It’s as if the jurors hold the view that if a person was there when the crime
occurred, then surely that person should be able to identify the criminal because, after all, they "saw it
happen." But what did they really "see"?
foundationbriefs.com Page 30 of 70
January 2010 Pro: Wrongful Convictions

Sherrer, Hans. "Report Downplays Wrongful Convictions in U.S." Forejustice. 2004. Web. 14 Dec.
2010. <http://forejustice.org/wc/mi_report_april04.html>.

Solid support for the pervasiveness of wrongful convictions indicated by those numerous estimates is
provided by the findings of a study published in June 2000. That study - A Broken System: Error Rates
in Capital Cases – found that 68% of the 4,578 capital cases finalized from 1973 to 1995 was reversed
on appeal; that “7% of capital cases nationwide are reversed because the condemned person was found
to be innocent;” and that on retrial, the defendant was given a lesser sentence in 82% of those reversed
cases. So based on the findings of that extensive multi-year study that was overseen by the esteemed
Professor James Liebman (co-author of Federal Habeas Corpus Practice and Procedure), if every one
of the 14,295,000 criminal conviction in this country from 1989 through 2003 had been subjected to the
same degree of appellate review as is a capital case, then 9,720,600 of those cases (68%) would have
been reversed, with the result that 680,442 of the defendants (7%) would have been exonerated, and
7,970,892 of the defendants (82%) would have been re-sentenced to a lesser punishment. Consequently,
the findings reported in A Broken System (and its follow-up report, A Broken System, Part II, February
2002) are consistent with the estimates from 1964 to 2000 that there are serious systemic errors in the
ability of this country’s legal system to accurately distinguish the innocent from the guilty.

It was reported in 1997 that the FBI found that 25% of the suspects in 12,000 rape cases were excluded
by DNA testing. That finding is particularly significant because exclusionary DNA evidence is only
available in a small percentage of all criminal cases.

foundationbriefs.com Page 31 of 70
January 2010 Pro: Negative Perceptions

Creates Negative Perceptions


Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Albert Alschuler is a professor of law and criminology at the University of Chicago.

In terms of defendants' perceptions of the system, it encourages the view that the system is all a matter
of networks and connections and who do you know and what kind of deal you make. That isn't the
image offenders should have of the criminal justice system; that's probably the view of the world that
got a lot of them into trouble in the first place.

Gazal-Ayal, Oren. Partial Ban on Plea Bargains. Rep. 5th ed. Vol. 27. Cardozo Law Review, 2008.
Print.

When plea bargaining is available, prosecutors can extract a guilty plea in nearly every case, including
very weak cases, simply by adjusting the plea concession to the defendant’s chances of acquittal at trial.
When almost every case results in a plea of guilty, regardless of the strength of the evidence, prosecutors
have much less interest in screening away weak cases. Since some cases are weak because the defendant
is innocent, however, more innocent defendants are charged and as a result more are convicted. (Pg. 1)

Opponents of the plea bargaining system argue that the practice is inherently dangerous to innocent
defendants. A defendant might plead guilty, not because he is guilty, but because the prosecutor offers
some concession in return. Even an innocent defendant may rationally prefer a specified lenient sentence
to the risk of a much harsher sentence resulting from a wrongful conviction at trial. (Pg. 2)

foundationbriefs.com Page 32 of 70
January 2010 Pro: Poor Legal Representation

Poor Legal Representation


Green, Bruce. "The Plea: Interview Bruce Green." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham
University.

In an ideal world, the defendant would be advised about what the evidence is that the prosecution's
going to introduce, about how credible the evidence is and be able to make a reasoned decision about
what are the risks, what are the benefits. That's the ideal world.
Now what's the real world? In the real world, defense lawyers are appointed in almost every case,
because very few defendants can afford a lawyer. The amount of time and resources the defense
attorneys have depends on what the state gives them. Most criminal defense attorneys throughout the
country carry very onerous caseloads. They may be representing 200 or 300 defendants in a year, and
they have very limited resources in which to conduct investigations. They're somewhat at the mercy of
prosecutors for the information that they have.
So in many cases, the defense attorney will take whatever the prosecutor gives, which could be very
little, it could be just the complaint. They'll then advise the defendant, "This is what you're offered. This
is what you risk if you go to trial." And that's pretty much it. And defendants make decisions with very
limited information.

Sometimes the notion of plea negotiations suggests that real negotiations are going on, that there's some
give and take, the way you might negotiate it if you were buying something in the market. It's really
pretty much "take it or leave it." Prosecutors say "Here's the offer: If you plead guilty, you get time
served, you get probation, you get three years, you get five years, take it or leave it." Defense attorneys
advise the clients based on very little information. And often the clients have to decide these things
within a very short amount of time.

Huff, Ronald. "Wrongful Conviction: Causes and Public Policy Issues." Criminal Justice
Magazine 18.1 (Spring 2003). American Bar Association. Web. 14 Dec. 2010.

Funding for public defenders is critically deficient in a number of locations in our nation, sometimes
prompting litigation, as recently happened in Wayne County, Michigan. The suit, which includes the
area covering Detroit, alleges that low rates of compensation (e.g., a maximum of $225 for investigation
and preparation of a case that may result in a sentence of life imprisonment) make it impossible to
provide meaningful representation to clients. On the other hand, in some areas, unscrupulous defense
attorneys (we call them "guilty plea wholesalers") can earn a considerable income by lining up a large
number of cases and pleading their clients guilty without adequate investigation.

foundationbriefs.com Page 33 of 70
January 2010 Pro: Poor Legal Representation

Green, Bruce. "The Plea: Interview Bruce Green." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

From the defense attorney's side, it's also troublesome because the standards of the legal profession say
that lawyers have to represent their clients competently and diligently. They have to advise their clients
about the decisions their clients have to make, and enable their clients to make informed decisions. Now
that suggests that if you're a defense lawyer, you have to learn what the case is against the defendant.
You have to conduct an investigation in order to give the client an ability to know what the risks are if
you go to trial -- how likely is it, really, that I'll be convicted versus acquitted? Most defense attorneys
don't have the resources to do that. In the overwhelming majority of cases, defense lawyers do next to no
investigation; they take whatever information the prosecutor gives them, they present the plea offer to
their clients and they let the client make a decision.

Oberman, Jonathan. "The Plea: Interview Jonathan Oberman." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Plea bargains -- If you go into court, if you were able to film guilty pleas taking place, you'd be shocked
to see that a case can be called before a judge, and on low-level cases, frequently resolved by way of
guilty plea within 90 to 120 seconds. … A judge can resolve many, many cases, 25, 50 cases in the
course of a court day, as opposed to having that entire day consumed with witness testimony on a single
trial.

foundationbriefs.com Page 34 of 70
January 2010 Pro: Conflict of Interests

Conflict of Interests
Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Albert Alschuler is a professor of law and criminology at the University of Chicago.

The plea bargain system is rife with conflicts of interest for both private lawyers and appointed lawyers.
The usual way of collecting a fee in a criminal case is to be paid a lump sump in advance. Your client
may not be around later to pay you, so you can't just send him a bill for the number of hours you have
spent. Once the lawyer has pocketed his fee, it's obviously to his economic advantage to plead the
defendant guilty, to find a way to get the defendant to enter a plea agreement. There are lawyers
throughout America who virtually never try a case, who get rich by handling a large volume of cases for
low fees, and the way to do that is not to try cases, but to plead defendants guilty.

Barket, Bruce . "The Plea: Interview Bruce Barket." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

There are lawyers who practice in every courthouse in the country who don't try cases, and everybody
knows it, except for the clients. So when they walk in, if you're a prosecutor you look over and you say,
"You're not trying that case. I know it; you know it. Here's the offer, take it, don't take it; today,
tomorrow, whenever, you're never going to trial, because we've been around for five or 10 years, and
this lawyer, in the 10 years that I've seen her or him, hasn't tried one case. I don't think they're starting
with this one."…

This is ultimately extremely damaging to the clients

foundationbriefs.com Page 35 of 70
January 2010 Pro: Conflict of Interests

Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

In the public defender system the defense counsel is representing a hundred other people; the defense
counsel can not take every case to trial, the caseload pressures force the defense counsel to decide which
of the cases he's going to take to trial and which not. Defense counsel in some circumstances is not very
competent and is delighted simply to take his money and run, so to speak. Some of the compensation
arrangements for defense counsel are quite perverse. They're paid by the case and therefore, it's in their
interest to take as many customers as they can, represent to them that they're getting them a great deal
and in fact not do very much for them. So there's no particular reason to think that defense counsel is
any serious answer to the intrinsically coercive nature of plea bargaining. To the extent that defense
counsel does in fact negotiate a better deal than one could get in the ordinary outcome of trial, that's also
something which disserves the public interest, in the sense that the defendant gets to walk. I'm not in
favor of all defendants walking around on the street free. I think most people who are prosecuted of
serious crimes are guilty of at least what they're charged with and ought to have serious criminal
sanctions attached. But the problem is, "most" isn't the way we do business in a free society that cares
about individual rights and individual liberty. We're concerned about each person, and the trouble with
plea bargaining is it places tremendous pressure on every defendant to waive the right to adjudication.

Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard
Law Review, 2004. Print.

Losses at trial hurt prosecutors’ public images, so prosecutors have incentives to take to trial only
extremely strong cases and to bargain away weak ones. They may push strong or high-profile cases to
trial to gain reputation and marketable experience. This dynamic is the opposite of what one might
expect: strong cases should plead guilty because trial is hopeless, while weak cases have genuine
disputes that merit resolution at trial. In other words, the shadows of trials in strong cases are so clear
and crisp that the shadow-of-trial model predicts settlement. In weak cases, however, the parties have
imperfect information about the cases’ weaknesses. Trial shadows in these cases may be fuzzy enough
that the parties can disagree in predicting trial outcomes, and as a result bargaining may break down.
The shadow-of-trial model, in short, predicts that most trials should involve weak cases. Self-interest, in
contrast, pushes prosecutors toward trying the strongest cases. Prosecutors can discourage defendants in
strong cases from pleading guilty by refusing to make any concessions, while they can make irresistible
offers in weak cases. Thus, instead of allowing juries to air and wrestle with the hard, troubling cases,
prosecutors may hide them from view. If, for example, prosecutors bargain away most cases involving
dubious confessions, they avert public scrutiny of police interrogation tactics. If they buy off credible
claims of innocence cheaply, they cover up faulty investigations that mistakenly target innocent
suspects. By pressing the easiest cases, prosecutors turn jury trials into rubber stamps or mere
formalities. (Pg. 10-11)

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January 2010 Pro: Efficiency Argument Insufficient

Disproportionate Power to Prosecutors


Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

The main winner in the plea bargaining process is the prosecutor. I describe plea bargaining as a system
of prosecutorial tyranny. What has happened is that a single officer, the prosecutor, now is in charge of
investigating, charging -- that is, bringing formal charges -- deciding whether to prosecute, evaluating
that evidence, [deciding] whether or not in his or her judgment you're guilty or not, and then basically
sentencing you. So that in place of a system which our constitutions have all devised, which is one in
which the power, the awful power, to inflict criminal sanctions on an accused, is dispersed across
prosecutor, witnesses, a judge, jury, sentencing professionals -- instead of all that, what we have now is
a system in which one officer, and indeed a somewhat dangerous officer, the prosecutor, has complete
power over the fate of the criminal accused.
I think defense counsel is to some extent at the mercy of a bad system. There's not a lot you can do when
the other guy has all the chips. And the prosecutor has an awesome pile of chips in our plea bargaining
system, because the prosecutor can threaten ever larger sanctions if you don't do what he wants. So I
believe that by far the worst failure in the plea bargaining system is the prosecutor, and I think that's in
part because the prosecutor is not always as noble as he would like you to believe he is.

You have to understand the perverse incentives that operate on prosecutors. Many of them are noble,
high-minded people, but they have very serious caseload problems of their own. They also are subject to
the ordinary human frailties. Some of them are lazy. It's hard work to try a case. It's much easier to
threaten some poor devil until he consents. … It's a lot easier to coerce somebody into waiving all his
defenses than to actually investigate the case thoroughly, take the proofs to trial and see to it that there's
a genuine adjudication.

Oberman, Jonathan. "The Plea: Interview Jonathan Oberman." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

I'd be more comfortable if fewer cases were resolved by way of plea. I think if plea bargaining did not
exist, it would require prosecutors to exercise discretion more intelligently. I think they would have to
charge cases more carefully. I think they'd have to access the strength and weaknesses of various
witnesses much more searchingly, because the catch-all, the escape hatch of plea bargaining doesn't
exist.

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January 2010 Pro: Stronger Charges and Punishment

Stronger Charges and Punishment


Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Albert Alschuler is a professor of law and criminology at the University of Chicago.

Guilty pleas have increased in recent years partly because sentences have become so draconian. We now
have mandatory minimum sentences. We have sentencing guidelines that are very tough, and it's like a
good cop/bad cop strategy for police interrogation. The sentencing commission is the bad cop. We're
going to be really tough, and the prosecutor then becomes the good cop, "Hey, I can protect you from
that bad old sentencing commission, but only if you cooperate with me." So you get tremendous
leverage.

We've imposed these guidelines because we don't trust judges. We don't think the judges will exercise
discretion properly. But all we've done is transfer the discretion from the judge to the prosecutor. Judges
don't sentence defendants in America today. One offender says, "You know, the judge is just put up
there. He's supposed to be the head of the show, but he ain't nothing. The head of the show is the
prosecutor." Another defendant says, "You know, the prosecutor is the man who gives you the time,"
and that's the truth in American criminal justice system. And the tougher the sentences that are
threatened after trial, the more leverage the prosecutor has to induce a plea of guilty.

Which comes first, the tough sentences, or are the sentences designed with the plea bargaining system in
mind? I think that the sentences are probably designed with the plea bargaining system in mind. I don't
know that it's a conscious, calculated process. But the overwhelming majority of defenders plead guilty.
You don't want to give inadequate sentences to the vast majority of offenders. So I think that the
sentences given to defendants who plead guilty are probably about what they would be in a system
without any plea bargaining at all.

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January 2010 Pro: Stronger Charges and Punishment

Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard
Law Review, 2004. Print.

The federal and many state systems have replaced indeterminate sentencing with sentencing guidelines
and have adopted mandatory minimum sentences by statute. For example, as mentioned above, federal
law prescribes five- and ten-year minima for certain drug and gun crimes. Both guidelines and
mandatory statutory penalties turn on the severity of the offense or the offender’s criminal record.
Neither calibrates punishment to the strength of the evidence. If the parties had precision sentencing
tools, they could tailor bargains to reflect both the severity of the crime and the strength of the evidence.
All too often, however, sentencing guidelines and statutes act as sledgehammers rather than scalpels.
This is particularly true of statutory minima and maxima, which are packaged in large, discrete chunks.
The result is that many defendants reap the same, crude discount regardless of fine differences in guilt
and proof. In other words, mandatory penalties create cliffs instead of smooth slopes. (Pg. 25)

Covey, Russel. Reconsidering the Relationship Between Cognitive Psychology and Plea Bargaining.
Rep. Georgia State University, 2000. Print.

State sentencing statistics for 2002 show the median sentence for all felony cases adjudicated by guilty
pleas to be 36 months, and the median sentence following jury trial conviction at 120 months, a 333%
trial penalty. The mean statistics are similar: 52 months for guilty pleas, and 140 months for jury trials, a
292% trial penalty.

These cases are the worst ones where the prosecutor cannot accept a deal

But large as they are, these figures fail to capture the actual trial penalties at work because they compare
only outcome disparities between guilty pleas and trials for the same offense of conviction. That,
however, is the wrong comparison. In most cases, by pleading guilty a defendant not only bargains for
the opportunity to receive a more lenient sentence for the offense of conviction, but he also receives the
opportunity to plead guilty to a less serious charge carrying a less onerous penalty. To calculate the
actual plea discount in any particular case, one must compare the sentence imposed on the lesser charge
to which the defendant pleaded guilty with the sentence that would have been imposed after conviction
on potentially higher charges at trial. An accurate estimate of the operative trial penalty, therefore,
depends not only on raw sentence differentials but also on the amount and type of charge dismissal and
movement that accompanies typical plea bargains. Although it is quite difficult to estimate the typical
additional discount resulting from such charge reductions, that additional discount need not itself be
large to have large effects. A 10% discount resulting from a charge reduction, for example, would
magnify the average 300% trial penalty by 33% (that is, increase the trial penalty from 300% to
333%), while a 50% reduction would double the penalty to 600% (and the "high-end" penalties to
1000% or more).

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January 2010 Pro: Guilty Plea Guaranteed

System Guarantees a Guilty Plea


Bright, Stephen. "The Plea: Interview Stephen Bright." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law at Yale and Harvard Universities and director of the Southern Center for Human
Rights.

The way in which judges accept guilty pleas is done in a way that almost insures that people are going to
plead guilty. They're asked leading, conclusory questions, where the answer is obvious.
The other thing is, if you're in a court that's taking pleas all day, all the defendants who are there sitting
in the audience see other people pleading guilty. It's just a ritual that everyone goes through. Everyone
knows the answers to the questions and everyone knows that if you answer the questions incorrectly, the
whole thing will blow up and the judge will yell at you and you might not get the bargain that you're
going to get. So everyone answers, "Yes, yes, yes" to all the questions and the judge says, "Well, I find
that this is a knowing, intelligent, voluntary plea." The fact is, the client probably didn't even understand
the process they just went through. …

One of the reasons that so many people plead guilty is because they really don't have legal
representation. Because when a lawyer meets somebody in court, talks to them for five minutes, they
plead guilty and are sentenced, that's not legal representation. A high school student could do that. You
don't need a lawyer for that. That's just a clerical function that the lawyers are providing. But our courts
have such a large volume of cases and so little resources has been devoted to providing representation to
people accused of crimes, that this sort of fast food justice is what we've ended up with. …
It's not unusual for lawyers who handle a high volume of cases to not know their clients' names or know
anything about them. I go to courtrooms all the time where you see the defense lawyers coming and
they'll stand up in the front of the courtroom and call the names of their clients because they don't know
who the clients are and ask them to raise their hand. They're just dealing with such a high volume of
cases, they don't even keep files on the cases, because they're only going to be dealing with this person
for five or 10, 15 minutes, and then the case is over. …

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January 2010 Pro: Guilty Plea Guaranteed

Green, Bruce. "The Plea: Interview Bruce Green." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham
University.

But the judge has to be sure the defendant is pleading willingly and truthfully, doesn't he?
Well, there's a required sort of litany that the judge goes through: Are you on drugs? Has anyone put a
gun to your head? Do you understand the charges? And so forth. But the reality is if the defendant wants
to take the plea, the lawyer prepares them for those questions. And so whether you feel there's a gun to
your head or not, you're going to say, "I'm entering this plea voluntarily, understanding what the charges
are." Now, the reality is nobody literally puts a gun to the defendant's head. The gun is really the high
penalty that they face if they were to go to trial and be convicted.
So it's a little act put on for the judge.
It's a little act, yes. One of the questions that defendants are often asked is, "Are you satisfied with your
lawyer? Did your lawyer do a good job?" And defendants are not likely to say, "No, judge, you know,
I'm not happy with my lawyer." You know what the required answer is supposed to be. And of course
the defendants might not know what, in an ideal world, the defense attorney would be doing anyway.

foundationbriefs.com Page 41 of 70
January 2010 Pro: System is Biased

System is Biased
Bright, Stephen. "The Plea: Interview Stephen Bright." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law at Yale and Harvard Universities and director of the Southern Center for Human
Rights.

It's different if the defendant has money?


For people that have money, it's a completely different system. You often see that in court, where you'll
see all these people herded through the system represented by a court-appointed lawyer just plea after
plea after plea. And then the case comes along where somebody's represented by a lawyer who's paid
and their case is completely different. The minister's there, the employer is there, the parents are there.
The person is dressed up with a coat and tie on. A presentation is made about why this person ought to
get a particular sentence, why the case ought to be reduced to a lower crime than what's accused. It's a
completely different kind of justice…

Bibas, Stephanos. Plea Bargaining Outside the Shadow of Trial. Rep. 8th ed. Vol. 117. Harvard
Law Review, 2004. Print.

Rather than basing sentences on the need for deterrence, retribution, incapacitation, or rehabilitation,
plea bargaining effectively bases sentences in part on wealth, sex, age, education, intelligence, and
confidence. Though trials allocate punishment imperfectly, plea bargaining adds another layer of
distortions that warp the fair allocation of punishment. (Pg. 6)

Plea bargains do not simply reflect expected trial outcomes minus some proportional discount. Many
other structural factors influence bargains. Sometimes these factors help or hurt certain classes of
defendants; in other cases, the effects are more idiosyncratic. Either way, bargains reflect much more
than just the merits. These structural distortions produce inequities, overpunishing some defendants and
underpunishing others based on wealth and other legally irrelevant characteristics. (Pg. 7-8)

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January 2010 Pro: System is Biased

Langbein, John. "The Plea: Interview John Langbein." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Prosecutorial power in the plea bargaining process often turns on pretrial detention. That is to say most
people [in the system] are too poor to afford bail, and these people are particularly likely to yield to the
demand that they confess whatever it is they're being charged with rather than wait for some kind of
trial, because they'll be sitting in jail for months and months and months, and therefore there is a very
evil interaction of prosecutorial power with poverty, with indigence.

The simple truth is there are not a lot of Rockefellers in jail for sticking up 7-Eleven stores or drug busts
or whatever. Most of the people caught up in a criminal justice system, for all sorts of sad reasons, are
people who are poor. And when you combine pretrial detention with the prosecutor's power to threaten
much worse sanctions if you don't confess and bear false witness against yourself -- many people caught
in that trap basically have no choice but to bear false witness against themselves, and confess to things
they didn't do. …

foundationbriefs.com Page 43 of 70
November 2010 Pro: Probation

Funnels People to Bad Probation System


Bright, Stephen. "The Plea: Interview Stephen Bright." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law at Yale and Harvard Universities and director of the Southern Center for Human
Rights.

A lot defendants who plead guilty end up on probation.


One reason that a lot of people plead guilty is because they're told they can go home that day because
they'll get probation. What they usually don't take into account is that they're being set up to fail. They're
going to be told to report every month to a probation officer, or maybe every two weeks. They probably
aren't told that that's going to cost them $40, or some fee depending on where they are, every time they
come. They may be told they have to go to classes. They're not going to be told, probably, that they have
to pay for those classes every time they go. They'll be fined, and more likely than not the fine will be
more than they can afford.
So before long they're going to be behind in their payments and then they probably won't go to see the
probation officer because they don't have the money that they're supposed to pay and then a warrant is
issued for their arrest and then they're sent to prison for violating their probation. So in the short term it
looks great to the person; what they haven't realized is that now there are all these responsibilities that
they have, which, because of their poverty and their financial inability to pay, they really don't have any
serious hope of meeting.

Why do they have to pay?


It's a relatively recent phenomenon, charging people to be on probation. At one time probation officers
worked for the state and their goal was to help deal with whatever problem got this person into the
criminal justice system. Now in lots of places we have private probation companies, which basically are
just for-profit businesses, which are collecting fees from people every time they come by and meet a
probation officer, and then maybe conducting classes and charging for those classes, or renting out ankle
bracelets that monitor the person's movements and so forth. All of that is generating income for this
company, but it probably is not dealing with whatever behavior brought the person into the court.

Who pays for that?


Unfortunately, too often it's paid for by the defendants, and illegally, because the Supreme Court of the
United States has said you can't lock people up just simply because they can't afford to pay, but the
courts never inquire into that. At the time people are put on probation, there's no inquiry into how much
money they make, what they can afford to pay. At the time they come back in because they haven't paid,
in most courts there's no hearing to find out that the baby had to go to the hospital and somebody lost
their job, that some other emergency in the family kept them from making the payment. It's just a
question of, "You owed this much money and you didn't pay it." And slam, off you go to jail. The hope
a lot of times is that the family will somehow mortgage the house, sell the car, do something to come up
with the money so that the person can get back out on the streets again. But we're really running debtor's
prisons as a result of this because a lot of families can't come up with the money.
foundationbriefs.com Page 44 of 70
Con Evidence

foundationbriefs.com Page 45 of 70
January 2010 Con: General

General
Siegel, Larry J., and Joseph J. Senna. Introduction to Criminal Justice. Belmont, CA:
Thomson/Wadsworth, 2008. Print.

Proponents of plea bargaining contend that the practice ensures the flow of guilty pleas essential to
administration efficiency. It allows the system the flexibility to individualize justice and inspires respect
for the system because it is associated with certain and prompt punishment. Proponents contend that plea
bargaining benefits both the state and the defendant in the following ways:

• The overall costs of the criminal prosecution are reduced.


• The administrative efficiency of the courts is greatly improved.
• The prosecution can devote more time to more serious cases.
• The defendant avoids possible detention and an extended trial and may receive a reduced
sentence,
• Resources can lie devoted more efficiently to cases that riced greater attention

In recent years, efforts have been made to convert plea bargaining into a more visible, understandable,
and fair dispositional process. Some jurisdictions have developed safeguards and guidelines to prevent
violations of due process and to ensure that innocent defendants do not plead guilty under coercion.
Such safeguards include the following:

• Uniform plea practice


• Time limits on plea negotiations
• Presence of defense counsel to advise defendant
• Open discussions about the plea between prosecutor and defense attorney
• Full information regarding offender and offense
• Judicial questioning of defendant before accepting the plea
• Judicial supervision of the plea

foundationbriefs.com Page 46 of 70
January 2010 Con: Innocents do not Plead Guilty

Innocents Do Not Plead Guilty


McSpadden, Michael. "The Plea: Interview Judge Michael McSpadden." Interview. Frontline.
PBS: Public Broadcasting Service, 16 Dec. 2003. Web. 8 Dec. 2010.

I go through all the admonishments. ... I can tell from his or her response to me. It's a very long litany,
and I have to be convinced. If I feel at any time that someone is being forced in any way to plead, I
won't accept that plea bargain. That's, again, the responsibility of the judge -- to make sure it's done in
accordance with the rules. If the court does feel that it's not appropriate, [that] the person is being
pressured in any way -- and sometimes you get a feeling -- a long pause; you go into a question/answer
with the defendant. The court does not accept that plea bargain.

Do you believe many innocent people plead, or plead no contest?


No. I really don't. I think most people that come in here that plead guilty are guilty. Sure, there are some.
There's no question about it, and I wish there weren't. But the great majority of them, I'm sure, are
guilty.

Gross, Samuel R. Lost Lives: Miscarriages of Justice in Capital Cases. Rep. 4th ed. Vol. 61. Law
and Contemporary Problems, 1998. Print.
Judging from the available evidence, innocent defendants almost never plead guilty when doing so
entails a substantial term of imprisonment—except in capital prosecutions. Radelet, Bedau, and Putnam
list sixteen cases of innocent homicide defendants who pled guilty; in most, fear of execution is given
explicitly as the reason for the plea. This is, no doubt, another illustration of how death is different. It
seems that innocent defendants will almost always risk additional years of their lives in order to seek
vindication rather than accept disgrace coupled with a long term of imprisonment, but some will not go
so far as to risk death.

foundationbriefs.com Page 47 of 70
January 2010 Con: Plea Bargains Necessary

Plea Bargains Absolutely Necessary


McSpadden, Michael. "The Plea: Interview Judge Michael McSpadden." Interview. Frontline.
PBS: Public Broadcasting Service, 16 Dec. 2003. Web. 8 Dec. 2010.

I look at it as a necessary component in our criminal justice system, mainly because the great number of
cases we deal with -- If we had an ideal situation, where every case that came in was tried before a jury
who speaks for our community, we would be sending these cases for 10 years down the road to be tried.
There just aren't enough courts to try these cases before a jury because the of number of cases.…

Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>

If, as seems more likely, the quality and accuracy of trial outcomes would decrease if there were a
substantial increase in the number of cases tried, then the accuracy of convictions in a regime of
universal trials would likely be substantially diminished. The abolition of plea bargaining would
therefore result in more innocent persons being wrongfully convicted and sentenced to harsher average
sentences. (Pg. 84)

Abrams, Howard E. Systemic Coercion: Unconstitutional Conditions in the Criminal Law. Rep.
Journal of Criminal Law and Criminology, 1981. Print.

Recent decisions have constitutionalized and expanded the rights of criminal defendants to the
point where if one in five defendants demanded all such rights, our criminal justice resources would
be exhausted….

foundationbriefs.com Page 48 of 70
January 2010 Con: Plea Bargains Necessary

Only way to Uphold 6th Amendment


"Overview of 6th Amendment Rights." NCWC: Faculty Pages. Web. 15 Dec. 2010.
<http://faculty.ncwc.edu/mstevens/410/410lect24.htm>.

One of our constitutional rights as Americans is the right to a speedy and public trial. While this right
can be waived by a defendant, it must be provided to him unless he explicitly declines it. As mentioned
in the above evidence, the criminal justice system would collapse if everyone were to demand their right
to a jury trial be upheld. In this collapse, we would see people being forced to wait months, even years,
to have their cases heard, thus violating their constitutional rights. As such, given the current level of
judicial resources, plea bargains are absolutely necessary and indeed beneficial in the quest to uphold all
constitutional rights.

foundationbriefs.com Page 49 of 70
January 2010 Con: System Struggles

Systems Struggle without Plea Bargaining


Weninger, Robert. "THE ABOLITION OF PLEA BARGAINING: A CASE STUDY OF EL
PASO COUNTY, TEXAS." UCLA Law Review 35.265 (1988): 265-314. Web. 15 Dec. 2010.

It should surprise no one that a system which provided so much adjudication would have serious
drawbacks. Previously, when plea bargaining was practiced, the two judges had been able to keep up
with their caseloads. In fact, they had been able to steadily reduce their dockets during the two-year
period before plea bargaining was abolished.60 But after the ban went into effect, case processing time
increased substantially61 and a backlog of cases quickly accumulated. On December 31, 1975, at the
beginning of the prohibition, there were 219· active criminal cases on the dockets of the two courts. By
late October 1978, there were 767 active criminal cases-an increase of 250 percent in less than three
years.62 . Even with the help the two criminal judges received from the civil judges, the caseload had
grown to a size that made it almost impossible to manage. Complaints over delays in court were heard
from both civil and criminal lawyers. The crisis was deepened by concern over whether there could be
compliance with the requirements of the state's newly enacted Speedy Trial Act (277-278)

This Article shows that even though sentence negotiation and charge bargaining were virtually
eliminated, the judges provided direct assurances of sentences to defendants if they pleaded guilty. It
also shows that another implicit but important form of plea bargaining remained-a sentence differential
between defendants who pleaded guilty and those who were convicted at trial. Multiple regression
analysis reveals that guilty plea defendants received shorter prison terms than jury trial defendants. (295)

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January 2010 Con: Proportionality

Allows for Proportionality


Barket, Bruce . "The Plea: Interview Bruce Barket." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

I think there's a lot good about it. I think plea bargaining is an invaluable part of our system. It tempers
justice with mercy, if you will. There are times when somebody is guilty -- a petty larceny, for example.
You go into a store and you shoplift. Let's say you steal something that's $1,010 in New York, which
makes you guilty of a felony. You lose your right to vote; you could go to jail for four years; you can't
get a job; you have trouble becoming an attorney or getting other professional licenses.

Suppose you're someone who, for whatever reason that day -- you were with friends, they were goading
you on, maybe you're doing it as a stunt. Whatever you're doing, it was a completely stupid and
aberrational act on your behalf. Prosecutor looks at that and says, "You know what? We don't think a
felony is the just result to ruining the rest of your life with it. We think that, in this particular case, a fair
result is we'll reduce it to a misdemeanor, or maybe even to a lesser offense than a misdemeanor, just a
plain offense. You'll pay a small fine, you'll do some probation, and you'll go on with your life." If you
want to get a license you can. If you want to vote, you can. You're not going to go to jail, and that's a fair
and just result. That wouldn't be possible if it weren't for plea bargaining.

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January 2010 Con: Proportionality

Gazal-Ayal, Oren. Partial Ban on Plea Bargains. Rep. 5th ed. Vol. 27. Cardozo Law Review, 2008.
Print.

Some scholars assert that settlements in borderline cases are morally superior to trial results.87 Judge
Easterbrook presented this argument as follows. The probability that the defendant is factually guilty can
be somewhere between 50% and 99.9%. The burden of proof at trial, which reflects the standard of
beyond reasonable doubt, is, say, 90%.88 In a trial, the jury tries to analyze the evidence and estimate
the probability that the defendant is guilty. If the probability of guilt is higher than 90%, it is rounded up
to 100%; if it is lower than 90%, it is rounded to 0%. Plea bargains, on the other hand, result in a
sentence that reflects the probability much more accurately. “It is hard to see how a process of
mandatory rounding is necessary for a morally healthy society.” According to Easterbrook, a sentence
should be correlated not only to the severity of the offense, but also to the probability that the defendant
is guilty. In order to see how plea bargains in weak cases achieve that goal, take the following example.
Consider a defendant who faces charges that, if proven at trial, will lead to a sentence of ten years of
imprisonment. Assume that the probability that the defendant is guilty, as reflected by the evidence
available to the prosecutor, is 80%. That means a reasonable doubt exists assuming, like Easterbrook
does, that a probability of 90% reflects the “beyond reasonable doubt” standard. The defendant is thus
likely to be acquitted. In other words, this case is weak. However, both parties know that the results of
jury trials are not certain. While most juries will acquit the defendant, some could find him guilty, even
though the case is weak. Thus, the defendant might be willing to plead guilty if he is offered a greatly
discounted sentence. For example, he could plead guilty in exchange for a two-year imprisonment term
instead of ten. In this way, plea bargains allow the sentence to reflect the weakness of the case.
Easterbrook appears to assume that this is a better result than a dismissal of that case. (Pg. 29-30)

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January 2010 Con: Better Overall

Better for the System and Society


Green, Bruce. "The Plea: Interview Bruce Green." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

Professor of law and director of the Louis Stein Center for Law and Ethics at Fordham
University.

I think the main benefit of the plea bargaining process from the state's point of view is it saves a lot of
money and resources. It also is in some ways fairer to witnesses and prospective jurors. Imagine if in all
these cases, the victims and witnesses had to come to court to testify. And in all these cases, people had
to leave their jobs in order to serve on juries. That would be very onerous for the public. So from the
state's point of view, if you have someone, especially someone who's clearly guilty, and you could get
them to plead guilty by offering them an inducement, it's in everybody's interest to do that.

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January 2010 Con: Better Than Trials

Pleas are better than Flawed Trials


Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>

First, they [plea bargaining’s defendants] point out that the innocence problem is not unique to plea
bargaining but rather is a necessary consequence of imperfect trials. If trials perfectly separated guilty
defendants from innocent defendants, no innocent defendant would plead guilty (at least as long as the
process costs of trial did not exceed the costs of conviction) because every innocent defendant would go
to trial and be acquitted. It is precisely because trials are flawed, and innocent persons are sometimes
convicted, that innocent defendants might rationally perceive pleading guilty to be the utility
maximizing option. (Pg. 80-81)

foundationbriefs.com Page 54 of 70
January 2010 Con: Preferred by Parties

All Parties Prefer Plea Bargaining


Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>

The charge that plea bargaining is unfair or unduly coercive is challenged by the observation that both
prosecutors and defendants prefer plea bargaining. After all, if either party believed that the bargain was
not beneficial, it could simply decline it and go to trial. Notwithstanding the fact that some innocent
defendants are induced to plead guilty as a result of the plea pricing mechanism, even innocent
defendants are better off with plea bargaining, it is argued, than they would be without it. (Pg. 80-81)

Gazal-Ayal, Oren. Partial Ban on Plea Bargains. Rep. 5th ed. Vol. 27. Cardozo Law Review, 2008.
Print.

Plea agreements are not forced on defendants, supporters note—they are only an option. Innocent
defendants are likely to reject this option because they expect an acquittal at trial. Of course, sometimes
even an innocent defendant faces a risk of conviction. The prosecutor might gather evidence that could
lead to his wrongful conviction in a jury trial. In such a case, the innocent defendant might prefer the
more lenient outcome that results from a guilty plea. Even in this case, however, plea bargaining is the
least aggravating alternative. Prohibiting plea bargaining for the innocent defendant forces him to face
the high risk of a jury trial conviction. But since he would have chosen the plea bargain, one could fairly
assume that he thinks that the risk of a guilty verdict at trial is too high. Thus, forcing the innocent
defendant to go to trial would be against his best interests. (Pg. 4)

Relying on the consensual nature of the practice, the Supreme Court and various scholars have praised
plea bargaining as a process that benefits all participants in the criminal justice system as well as the
public. Defendants can opt for a lower sentence than the one they risk at trial, prosecutors assure
convictions and are able to prosecute more defendants, and the public benefits from an effective criminal
justice system at a reasonable cost. (Pg. 8)

Proponents of the plea bargaining system do not question the fact that sometimes innocent defendants
plead guilty. Their common reply is that forbidding plea bargaining would only make defendants’
situations worse. Trials are not perfect and defendants can be wrongly convicted in trials as well.33
When a defendant takes into account the probability of being falsely convicted and the severity of the
post-trial sentence, he may decide he is better off pleading guilty to an offense he did not commit. Plea
agreements thus serve as a type of insurance.34 One should not prevent innocent defendants from
buying this type of insurance against a wrongful conviction at trial.35 In other words, because the
defendant can always opt for a trial, the innocent defendant can always choose the lesser evil between
pleading guilty and gambling on a jury trial. Eliminating one of these admittedly grave options can only
harm him. (Pg. 13)

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January 2010 Con: Insurance

Acts as Insurance
Huff, Ronald. "Wrongful Conviction: Causes and Public Policy Issues." Criminal Justice
Magazine 18.1 (Spring 2003). American Bar Association. Web. 14 Dec. 2010.

Why would someone plead guilty to a crime he or she did not commit? An earlier social psychological
experiment offered important insight into this question. In that experiment, it was shown that innocent
"defendants" were more likely to accept plea bargains when they faced a number of charges or when the
probable severity of punishment was great. Since the outcome of a legal case is never certain, many
defendants can be enticed to plead guilty, even though they are innocent, in order to avoid even more
severe consequences of systemic error.

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Contentions

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November 2010 Contentions: Pro

Pro Contentions
1. Increases wrongful convictions
The practice of plea bargaining is a carefully constructed system of incentives and coercion meant to
ensure that people charged with a crime bend to the will of the prosecution. With over 95% of
criminal cases being decided by a plea bargain, prosecutors have become complacent in the face of
justice. Rather than a careful screening process of suspects, prosecutors can charge an individual
loosely-related to the crime and rely on plea bargaining to ensure a conviction. This is because the
disparity between punishments by plea bargaining and trials are tremendous, ranging from a 333%
increase to a 500% increase. Thus, when an innocent person is confronted with a criminal charge, it
is easy to rationalize that taking a plea bargain for 7 years in prison is better than risking an entire
life in prison. The criminal justice system is not perfect, the FBI admits that roughly 25% of prime
suspects would be cleared of the crime they were charged with if DNA evidence was available. Plea
bargaining especially undermines the criminal justice system because it destroys a fundamental
principle in our society. We seek to punish the guilty but even more so stop innocent people from
being convicted (thus the “beyond a reasonable doubt clause”). But plea bargaining achieves neither,
every time we convict an innocent person we leave the actual offender free to continue victimizing
citizens.

2. Punishes exercise of Constitutional rights


The Sixth Amendment to the United States Constitution guarantees the right of an accused to a
speedy trial with a jury of his peers. Plea bargaining, through use of coercive tactics, punishes an
accused for simply wanting to exercise a right. This is because prosecutors, judges, and defense
lawyers all benefit from plea bargaining and therefore strongly discourage exercising the right to
trial. Judges are in favor of plea bargains because it moves the court docket quickly, allowing them
greater freedom in their judge calendar. As such, judges pressure defense lawyers to force their
clients into accepting plea bargains by informing the lawyer that the judge will impose a maximum
sentence if the defendant goes to trial. Prosecutors punish the right to trial by lobbying for greater
sentences, and they do this because plea bargains guarantee high conviction rates and a good
reputation for the prosecutor. Finally, defense lawyers pressure their clients to accept plea bargains
because of financial incentives. Generally, these lawyers are not paid hourly but instead on a flat rate
per case. Thus, the more cases they take on, the more money they make. So, they encourage clients
to take a plea bargain because they can quickly move through cases. If a case goes to trial, many
defense lawyers will end up making less than a dollar an hour. This is unfair to the defendant, when
plea bargaining ensures everyone in the system is discouraging him from exercising his rights.

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January 2010 Contentions:Pro

3.Hides the truth


The core of the criminal justice system is transparency to the community. Trials are meant to be
open because the public has a right to know what crimes are committed in the community and juries
are supposed to reflect the community as a whole. However, plea bargaining undermines this
principle because it is a private ordeal, and no real investigation is done to examine the truth of the
crime. Most plea bargains happen in as little as five minutes. Especially with poor defendants that
have a public defender, courts give little attention to the actual investigation of the crime. Because
no trial takes place, the prosecutor controls all of the information given to a defendant and his
lawyer. This harms the defendant especially because a Supreme Court ruling in 2002 allows
prosecutors to hide faulty evidence from the defense. Essentially, when plea bargaining occurs,
police investigations do not need to be thorough, the crime is never really investigated, and a public
trial never occurs. Because the criminal justice system has a goal of obtaining the truth of the crime,
plea bargaining definitely undermines this justice.

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November 2010 Contentions: Con

Con Contentions
1. Proportionality
The idea of criminal justice is to dole out punishment that fits the crime committed. Plea bargaining
is an essential tool in making sure that proportionality is upheld. This can happen in several ways.
First, prosecutors generally do not have a lot of information when they initially charge a suspect,
sometimes it is as little as a one page police report. As such, they overcharge the suspect to ensure
that everything is covered. Plea bargaining allows prosecutors to adjust the charges pressed as more
information comes to light in the subsequent investigation. Plea bargaining is also valuable in how
justice is applied to first time offenders and remorseful offenders. We as a society believe that first
time offenders deserve leniency, and as such plea bargaining can allow prosecutors to adapt charges
(for instance, bargaining a speeding ticket down to a lesser offense). Moreover, we value
responsibility in our society and plea bargaining rewards those who take responsibility for their
actions. Taken together, it is clear that plea bargaining upholds the criminal justice system by
ensuring punishment is proportional to the crime committed and to the characteristics of the
criminal.

2. Insurance against a flawed trial system


Despite being one of the safest and most complex trial systems in the world, the United States
criminal justice system is not perfect. Unfortunately, innocent people can be convicted, but plea
bargaining helps to mitigate this effect. This is done because when a person who is innocent is still
implicated in a crime, they can use plea bargaining as a check on the system. Rather than having to
face many years in prison, they can use plea bargaining to seek lesser damages. While they are still
punished, plea bargaining help to dampen the impact of an unfair trial that would occur otherwise.
For example, in Illinois many death row inmates were later proven innocent of their crime because
of DNA evidence. However, many people avoid this harm by plea bargaining in a murder trial to
long prison terms. During this long term, they can work towards proving their innocence. Many
believe that sentencing in the United States is too rigid and draconian. Plea bargaining alleviates this
problem by again providing proportionality and insuring that innocent people are not convicted to
extremely harsh sentences.

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October 2010 Counters: Con

3. Plea bargaining is necessary for justice in the United States


Currently, plea bargaining occurs in 95% of criminal convictions. It can be seen then, that the
criminal justice system heavily relies upon plea bargaining to function. Without plea bargaining, the
system as a whole would such down. Defendants would no longer be able to have a speedy trial
because the court dockets would fill up and become backlogged. As such, plea bargaining is crucial
to ensuring that when a person does choose to exercise their right to a trial, it can be a well
coordinated and speedy trial. Both prosecutors and defense lawyers have more time to devote to
trials when the majority of defendants choose to lighten caseloads through plea bargaining. Today,
we are debating the merits of plea bargaining in relation to the system as a whole. Undoubtedly, plea
bargaining promotes justice in the system as a whole because it gives defendants more choices in
accepting or rejecting the plea, and it gives judges, lawyers, and prosecutors greater ability to
allocate resources to those who go to trial. Without plea bargaining, there would be no realistic way
to guarantee the Constitutional rights associated with criminal justice.

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Counters

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November 2010 Pro: Pleas Unnecessary

Pro Counters
Plea Bargains Worse than Trials

Covey, Russell D. Signaling and Plea Bargaining's Innocence Problem. Rep. Washington and Lee
University, 2009. Web. 13 Dec. 2010. <http://law.wlu.edu/deptimages/Law%20Review/66-
1CoveyPublished.pdf>

To the extent that trials themselves are imperfect vehicles for separating the innocent from the guilty,
plea bargains cast in trial shadows can at best only replicate the error rate of the trial system. Moreover,
given the substantial uncertainties inherent in attempting to estimate probabilities of conviction based on
the often skeletal pretrial evidentiary record, outcomes negotiated in the shadows of trial likely are a
good deal less accurate than trial outcomes themselves. Thus, both in theory and in practice, the trial
shadow model depicts plea bargaining as at best a comparable substitution for trial, lacking any of the
collateral benefits of trial (such as the creation of a public record of the crime and the evidence) but
producing substantial savings in resources, and at worst, a vastly inferior substitute that we put up with,
like a counterfeit Rolex watch, because it is much cheaper than the real thing. (Pg. 83)

System Can Function Without Pleas

"Plea Bargaining." Interview. Bronx County District Attorney's Web Site. 1 June 1993. Web. 08
Dec. 2010. <http://bronxda.nyc.gov/fcrime/plea.htm#s2>.

Con (On the Bronx removing plea bargaining):

Q. Are pending cases now escalating out of control?


A. Not at all. In the eight years prior to my policy, pending cases increased by 112%, an average of 14%
each year. By comparison, though, between April 1992 and April 1993 pending cases increased by only
a fraction of 1%. Moreover, for the first four terms of this year, pending cases actually decreased by a
fraction. Additionally, the average time to disposition during the first quarter of this year was faster by
19 days than in Manhattan, and the median time to disposition was faster by 20 days than it was state-
wide.
Q. As a result of your policy, are the City jails exploding with inmates awaiting trial?
A. Certainly not. In fact, between last November and this April, the number of incarcerated defendants
awaiting trial on Bronx cases actually declined by 2%.
Q. Viewing your policy over its first six months, what is its greatest accomplishment?
A. Simply put, it has improved the quality and professionalism of criminal justice in the Bronx.

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January 2010 Pro: Efficiency Argument Insufficient

White Carns, Teresa, and John Kruse. ALASKA'S PLEA BARGAINING BAN RE-EVALUATED.
Rep. January 1991. Web. 14 Dec. 2010.
<http://www.ajc.state.ak.us/reports/plea91exec.pdf>.

In 1975, Alaska Attorney General Avrum Gross banned plea bargaining in Alaska. The Judicial
Council's initial evaluation of the ban found that plea bargaining, both charge and sentence
bargaining, was substantially curtailed, and that despite the dire predictions of unmanageable
caseloads and backlogged trials, disposition times for criminal cases actually improved. (1)

Although more trials occurred immediately after the ban, the system managed to accommodate them
without major disruptions. Nor was there substantial evidence that plea bargaining went underground.
(8)

In the prosecutors' offices, the ban caused increased attention to the screening and charging decisions for
the acceptance of cases. The standard shifted from a "probable cause" standard to a "beyond a
reasonable doubt" standard. (11)

Pre-filing screening of cases by prosecutors led to new standards for police investigations, resulting in
increased police professionalism. (14)

In the longer run, however, police opinion grew more positive. A veteran police officer described the
effects of the policy on the Anchorage Police Department, saying that police work prior to 1975 was
"very sloppy," and police rarely went to court. After the ban, the prosecutorial demands for stronger
cases "forced us to go back and become good investigators." (16)

Trials did increase in the first year after the ban, from 7% of all cases to 10%. Other Judicial Council
studies found that the rate of trials increased again in 1977, and by 1978 had levelled off. By 1980, the
trial rate had dropped considerably, and by 1984, the rate had dropped back to 7% of all cases arrested
or referred to the prosecutors. It stayed at about that level through 1987. Most interviewees attributed the
increase in trial rates immediately after the ban to the ban itself. The gradual decline in trial rates and
their stability in the mid-1980s suggest that the justice system adjusted to the ban and to subsequent
changes in the criminal code and sentencing structure without resorting to trials. (21)

The evidence, both statistical and interview, strongly supported the conclusion that while
trials did increase for the first two to three years after the ban, the increase was handled by the
system without significant new resources. (21)

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October 2010 Counters: Con

Weninger, Robert. "THE ABOLITION OF PLEA BARGAINING: A CASE STUDY OF EL


PASO COUNTY, TEXAS." UCLA Law Review 35.265 (1988): 265-314. Web. 15 Dec. 2010.

Plea bargaining can be successfully banned: Defense counsel and prosecutors agreed that charge
bargaining was much more infrequent after the ban. Office policy prohibited either count dismissals or
charge reductions following the return of an indictment. Exceptions had to be cleared through the district
attorney or his first assistant. The district attorney said that he allowed explicit concessions only in
capital cases or in other exceptional situations, such as where the victim of a sex offense would have
found it especially traumatic to testify at trial, or where the accused had cooperated in the prosecution of
other defendants by testifying against them. Defense lawyers agreed that otherwise there were no deals
obtainable from the prosecutor's office during the postperiod. (296)

Prosecutors were of the opinion that the ban affected their charging practices and that overcharging-the
practice of indicting a case for more than it was worth-was less frequent after the prohibition. The
assistant who was responsible for screening the bulk of felony cases during the postperiod said that
indictments then were less likely to contain charges that could not be supported by evidence. He stated
that he was more conservative in charging because of the surge in jury trials. Inflated indictments might
result in too many acquittals. (299)

Table 3 shows an increase-from 13.2% to 18.6%-in the percentage of indictments containing fewer
counts than arrest charges. The table also shows an increase-from 8.8% to 13.3%-in the percentage of
indictments containing a reduction in the primary arrest charge. These differences are statistically
significant (299-300)

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October 2010 Counters: Con

Efficiency Does not Justify Plea Bargaining

Sandefur, Timothy. "In Defense of Plea Bargaining." Regulation. CATO Institute, Fall 2003. Web.
9 Dec. 2010.

But the Court frankly appealed to necessity: “The imposition of these difficult choices,” the Court wrote,
is an “inevitable attribute of any legitimate system which tolerates and encourages the negotiation of
pleas.” The Court thus upheld the practice of plea bargaining solely on pragmatic grounds: “A rigid
constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the
defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into
the shadows from which it has so recently emerged.” This begs the question. If a practice offends the
Constitution, it ought to be driven into the shadows, just as segregation was. By basing its entire theory
on pragmatism rather than the Constitution, the Hayes Court opened itself to the charge that it was
editing the Constitution to suit current needs. If a practice is unconstitutional, efficiency cannot excuse
it. “It is highly probable that inconveniences will result from following the Constitution as it is written,”
wrote dissenting New York Court of Appeals chief judge Greene Bronson in the 1850 case Oakley v.
Aspinwall. “But that consideration can have no weight with me.… There is always some plausible
reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power—
some evil to be avoided, or some good to be attained by pushing the powers of the government beyond
their legitimate boundary. It is by yielding to such influences that constitutions are gradually
undermined, and finally overthrown.” (29)

Alschuler, Albert . "The Plea: Interview Albert Alschuler." Interview. Frontline. PBS: Public
Broadcasting Service, 16 Jan. 2004. Web. 12 Dec. 2010.

What do you say to those who argue that plea bargaining is necessary?
The bottom line argument for lots of people is, "OK, it may be unfair, but it's necessary. We'd have to
have a courtroom for every filling station if we tried to implement the right to trial [for every
defendant.]" I think that's a kind of a shocking idea. Our president thinks we can send a manned mission
to Mars at a cost of $500 billion, and yet we have a justice system that doesn't think it can afford to give
defendants the most basic of their rights -- the right to be heard in court? Something is wrong with that
picture. Most nations of the world poorer than ours manage to implement the right to trial. There has to
be a way for us to do it too.

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November 2010 Coupon

Roberts, Paul C. "The Growing Problem Of Wrongful Conviction." The Independent Review.
VDare, 15 Apr. 2003. Web. 14 Dec. 2010.
<http://www.vdare.com/roberts/independent_review.htm>.

A circularity of reasoning justifies plea bargaining. Without plea bargaining, the argument goes, the
courts would not be able to handle the caseload. This argument is unconvincing. The obvious solution is
to create enough courts to handle the case-load or to reduce the caseload by eliminating victimless
crimes, such as drug possession and trumped-up charges based on regulatory interpretation. Without the
war on drugs, asset forfeiture, and months-long court disputes over the meaning of a lengthy arcane
regulation, there would be enough courts and judges to handle the serious crimes.

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November 2010 Coupon

Con Counters
Plea Bargaining is not a Direct Violation of Rights

Sandefur, Timothy. "In Defense of Plea Bargaining." Regulation. CATO Institute, Fall 2003. Web.
9 Dec. 2010.

A criminal defendant, by contrast, has no right not to be indicted for his crimes. As Lynch says, the
criminal may not walk away from the state; he is rightfully subject to any indictment consistent with the
facts and law. The government may offer leniency and give up its right to indict him in exchange for a
plea, just as it may offer to forgive other debts or confer other benefits. But the defendant has no
grounds for complaint if the government chooses not to. (30)

No Right to a Public Trial by Jury

Sandefur, Timothy. "In Defense of Plea Bargaining." Regulation. CATO Institute, Fall 2003. Web.
9 Dec. 2010.

The U.S. Supreme Court held in the 1979 case Gannett Co. Inc. v. DePasquale that the public does not
“have an enforceable right to a public trial that can be asserted independently of the parties in the
litigation.” That seems reasonable; while requiring jury trials may make sense as a matter of policy, it is
not an inalienable right. Life, liberty, and the pursuit of happiness are inalienable by nature. But the right
to a jury is a civil right, not a natural right. If defendants can waive personal jurisdiction, and waive their
right to an attorney, there seems little sense in saying that the jury right is inalienable. Today, it seems to
be universally conceded that the right to a jury trial is alienable, and nothing in the Constitution says
otherwise. It follows that a defendant can “sell” his right to trial if he so chooses. And at least some
defendants — often guilty ones—benefit from doing so. (29)

Plea Bargaining Does not Violate Equal Protection

Sandefur, Timothy. "In Defense of Plea Bargaining." Regulation. CATO Institute, Fall 2003. Web.
9 Dec. 2010.

But both of the criminals in Judge Young’s example committed crimes for which they might be sent to
jail for 20 years; neither has a right to demand a four-year sentence. A four-year sentence for one does
not increase the punishment for the other; it simply fails to decrease the other’s sentence — something
to which neither defendant is entitled to begin with. The disparity of their sentences does not represent

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October 2010 Counters: Con

greater punishment being visited on the party that refuses the bargain; rather, it represents a benefit
conferred on the party that did bargain. (31)

Wrongfully Pleading Guilty is not the Fault of Plea Bargaining

Sandefur, Timothy. "In Defense of Plea Bargaining." Regulation. CATO Institute, Fall 2003. Web.
9 Dec. 2010.

Lynch wrote in his 2002 article, “It is easy for some people to breezily proclaim that they would never
plead guilty to a crime if they were truly innocent, but when one is confronted with the choice of two
years in jail or quite possibly 20 years’ imprisonment, the decision is not so easy.”
That is true, but note that Lynch assumes that the innocent defendant will be convicted and sentenced to
20 years. Without that assumption, the hypothetical defendant’s risk profile changes, and surely innocent
defendants have reason to believe that they are less likely to be convicted. If not, then our target should
be the trial system, not plea bargaining...if defendants are so afraid of trials that they regularly plead
guilty to crimes they did not commit in order to avoid a trial, then that is an indictment of the trial
system, not plea bargaining.(31)

Wrongful Convictions are not as Prevalent as Claimed

Morris B. Hoffman, "The 'Innocence' Myth," Wall Street Journal, April 26, 2007.

But the real wrongful conviction rate is almost certainly lower, and significantly so, says Morris. Earlier
this week the innocence project at Cardozo School of Law issued a press release celebrating the 200th
person exonerated by DNA testing. But in the 20 years innocence projects have been operating, there
were roughly two million criminal trials in the United States.

• Assuming as many as 25 percent of those trials resulted in acquittals (and ignoring, as the
innocence merchants are wont to do, the problem of wrongful acquittals), the wrongful post-trial
conviction rate is only 0.013 percent.
• Since only 5 percent of cases are tried, that would place the overall wrongful conviction rate at
around 0.00065 percent.

Of course, this is just a lower bound estimate, based on several admittedly questionable assumptions,
including that the innocence-project data is representative, and that no innocent people plead guilty. But
even if this estimate is an order of magnitude or two low, it is still considerably less than the
mythmakers would have us believe, says Hoffman.

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October 2010 Counters: Con

False Testimony is Unlikely

McMunigal, Kevin. "Defense Counsel and Plea Bargain Perjury." OHIO STATE JOURNAL OF
CRIMINAL LAW 7 (Spring 2010): 653-58. Web. 15 Dec. 2010.
<moritzlaw.osu.edu/osjcl/Articles/Volume7_2/McMunigal-FinalPDF.pdf>.

Even if the client were neither charged nor convicted of perjury or making false statements to a
government official, the commission of such crimes or even strong suspicion of commission of such
crimes could easily prompt the prosecutor to retract the plea agreement along with its benefits and move
both the prosecutor and the sentencing judge to adopt a more punitive posture toward the client at
sentencing. In short, the client's perjured testimony scheme may well result in a lengthier rather than a
shorter sentence. (658)

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