Could Sentencing ‘Discounts’ Replace Plea Bargaining?

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

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

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

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

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

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

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

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

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

The paper acknowledges the constitutional limitations of this scheme; namely, the potential interference with a defendant’s right not to plead guilty, and right to a fair trial.

“Paradoxically, the effect of our proposal is that defendants with the strongest defense will be most strongly encouraged to plead guilty,” the authors write. But it’s clear that the current plea process results in many innocent people pleading guilty, they argue, and “while our proposal will have the same effect, it has a demonstrable advantage over the current system.”

They add: “The transparency of the reform means that defendants will know precisely the maximum discount that is available to them if they relinquish their right to trial. This means that they can make fully-informed, autonomous decisions regarding their criminal justice outcomes and have a basis for confidence that their prospect of acquittal, if they had elected to exercise their right to trial, will be reflected in a significantly lower sentence.

“This is in contrast to the current situation, where the discount accorded to defendants in the plea bargaining process is, to some extent, driven by the opaqueness and fickleness of the respective negotiation skills of the prosecutor and defense lawyers.”

This summary was prepared by TCR Deputy Editor Victoria Mckenzie. Readers’ comments are welcome.

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