Unjust Bargains
Brian M. Close, Esq.
“[Plea Bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.”[1]
“The proliferation of sentences carrying mandatory minimum sentences, the inflation in sentence severity, the starvation of criminal defense services for the poor, and a host of other phenomena all have contributed to the elevation of plea bargaining to the king’s seat in the criminal justice system.”[2]
“Plea bargaining’s triumph was manifestly the work of those courtroom actors who stood to gain from it.”[3]
“We now have not only an administrative criminal justice system, but one so dominant that trials take place in the shadow of guilty pleas.”[4]
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E. LEADING THEORETICAL METHODS
5. Plea-Based Ceilings
Perhaps the most intriguing of the proposals to improve the plea bargaining system is referred to as “plea-based ceilings.” Given that the “long-recognized solution” to the innocence problem is to limit the differential between the plea deal and what the defendant would receive after trial, this differential must be reduced.[202] Instead, the difference between the plea sentence and the trial sentence is “enormous and growing.”[203] But, the prosecutors’ charging decisions are immune to challenge, meaning fixed discounts are “doomed to failure.”[204] A partial ban on the greatest plea discounts is simply a discount floor, which operates in a similar manner to a fixed discount.
Plea-based ceilings reverse the process. Rather than limiting the discount that the prosecutor can offer, a ceiling limits the increased sentence that judges can impose, relative to the plea offer. Thus, prosecutors would still have discretion to offer whatever sentence they believe is fair. If the defendant rejects it, the judge may sentence only to a fixed amount above the plea offer.[205] Thus, if the prosecutor offered a five-year deal, but the defendant rejected it, he could receive only (5 x FI), where FI is the fixed increase of perhaps 33 percent or even 100 percent.[206]
This size must be set to a small enough level not to create the large disparities that currently exist. That way, prosecutors could not induce a guilty plea from an innocent defendant through large discounts, because the court would be constrained by that offer at post-trial sentencing.[207] Their plea offer would indicate their true beliefs about the strength of the case, and would contradict their later calls for a longer sentence.[208]
