Bring Plea Bargaining ‘Out of the Shadows’: Paper

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The dominance of plea bargaining and the lack of transparency throughout the justice system should be addressed with “legal safeguards” to protect defendants, argues a forthcoming paper in the Stetson Law Review.

“The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system,” write the paper’s authors, Anna D. Vaynman and Mark Robert Fondacaro of the John Jay College of Criminal Justice.

The authors acknowledge that prosecutorial discretion is a potentially valuable tool, but they are quick to note that it creates the “potential for abuse.”

That abuse often begins with plea bargains, write the authors, adding “Are they really bargains?”

Some argue that they are not, noting that in 2018, more than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent, according to the Pew Research Center.

The guilt of those defendants is far from certain, the paper says — especially when so much pressure is exerted on them to avoid a trial where they are told they will risk a longer sentence if they are convicted.

With few safeguards and little oversight, the pressure is coupled with “overcharging, exploding offers, dismissing charges, charge stacking” and other tactics that invariably shift the balance to the prosecutor.

The ‘Importance of Balance’

The discussion surrounding prosecutorial discretion could benefit from “nuance and precision,” says the paper.

‘Prosecutorial discretion is not inherently negative or one-sided,” the paper asserts.

The core purpose of a trial should be to resolve conflict in a way that “strikes a balance between truth-seeking, fairness, and the promotion of social stability, ” yet, in a courtroom setting where one part has unique power, “legitimacy is jeopardized,” the authors detail.

Reforming a process that has been “deeply ingrained” in U.S. legal culture is difficult, but not impossible, write the authors.

Recommendations for ‘Regaining Balance’

The paper’s primary recommendation is to take plea bargaining “out of the shadows.”

Vaynman and Rondacaro argue that better documentation of plea bargains will help with the court’s oversight, and reintroduce the “balance of power that leads to justice” particularly around patterns of potentially biased practices in plea negotiations involving prosecutors.

The authors also suggest stricter requirements for the discovery process.

Currently, because of United States v. Ruiz, prosecutors are not obligated to turn over material prior to entering into a plea deal with a defendant, meaning that defendants and their attorneys are “flying blind” and are unable to take into consideration evidence the prosecution may or may not have when entering into a deal.

Other recommendations include:

    • Establish post-conviction review mechanisms independent from the prosecuting attorney to encourage prosecutorial self-restraint; and,
    • Eliminate mandatory minimums, as they have been “abundantly” exploited by prosecutors.

The researchers say that the above suggestions are by no means exhaustive, but offer them as a starting point for a wider discussion about the strengths and weaknesses of current prosecutorial discretion.

“A system does not garner trust because it is powerful; a system is trusted because it subjects itself to the judgment and scrutiny of others,” the authors conclude.

“It behooves the legal system to give prosecutors the opportunity to subject themselves to this discerning judgment in a structured, systematic, and informed way.”

Anna D. Vaynman is a Ph.D. student in the Psychology & Law program at John Jay College. As a doctoral student, Anna studies plea bargaining behaviors and motivations, with a particular interest in the role of attorneys throughout the plea process. She graduated Barnard College in 2016 with a Bachelor’s in Psychology

 Mark Robert Fondacaro is currently a Professor of Psychology and Director of the Doctoral Training Program in Psychology & Law at John Jay College of Criminal Justice and the Graduate Center, CUNY. Over the past 10 years, Professor Fondacaro has helped to develop and implement training programs for the NYPD on managing situations involving emotionally disturbed persons including scenario-based training.

Additional Reading: Duke Researchers Pry Open the ‘Black Box’ of Plea Bargaining, The Crime Report, Dec. 9, 2021.

The full paper, entitled “Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System,” is available for download here.

Andrea Cipriano is Associate Editor of The Crime Report

2 thoughts on “Bring Plea Bargaining ‘Out of the Shadows’: Paper

  1. When my son signed the plea bargain that he was afraid not to sign for the same reasons you list; he was threatened with life, the $100,000 restitution was not on the agreement. After business was taken care of at the hearing, the judge then asked the prosecutor if restitution was going to be assigned. The prosecutor then stated that they were looking for $100,000 and the judge granted it. The $100,000 restitution was added in by hand after my son had already signed the agreement. My son would never have agreed to this “bargain”, which by the way he did not get what he was told he would get, knowing that he would have to pay the restitution which was never brought up to him by his defense counsel.

    • The key is your last point, defense counsel. The Sixth Amendment right to “effective” assistance of counsel is on a thread supported only by the defendant’s ability to catch the counsel’s error and his ability to properly file the complaint in court under 28 U.S.C. 2255. I had a similar issue and the only thing my lawyer wanted to do is plea out Although I did get a good deal compared to the overall scheme of things, I found out some really messy things about my case after the fact. For one, I found out that the government is promoting the commercial production of child pornography and my conduct was actually helping the federal government combat the commercial exploitation of children. Yet I was incarcerated for the latter. Second, I had a shot at an illegal search claim.
      Point is, lawyers are kind of running on a conflict of interest in representing defendants. Take my case for example. If I win on my constitutional question regarding my criminal charges, that is less cases for lawyers to take overall, and therefore less money that they make. Lawyers have a personal interest, for the sake of their livelihood, to ensure that criminal defendants do not get out on constitutional technicalities.

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