One of my former students recently sent me this link to a great Frontline program on plea bargaining. The program is four years old, but remains a timely and engaging exploration of some of the important plea-bargaining issues that I cover with my Criminal Procedure students, including the liberal use of “trial penalties” (i.e., longer sentences for defendants who exercise their constitutional right to go to trial) by judges and prosecutors to induce guilty pleas, the poor advice provided by some defense lawyers in connection with plea offers, the intense pressure experienced by even innocent defendants to plead guilty when they are unable to make bail and are forced to endure months of jail while awaiting trial, and the difficulty of correcting false guilty pleas once they are made. Although there are many abuses and miscarriages of justice associated with the American plea-bargaining system, it is too simplistic to say that plea-bargaining should be banned. Many of the same factors that lead to guilty pleas by innocent people (incompetent defense counsel, prosecutors more concerned about securing convictions than doing justice, an overstretched and often careless court system) seem just as likely to lead to convictions of innocent people at trial. As I have argued elsewhere, the goal should not be to abolish plea-bargaining, but to make the plea-bargaining system work better, particularly by insisting that prosecutors appreciate that they are functioning in a quasi-adjudicatory capacity when they decide what deals to offer which defendants — and hence ought to observe basic principles of procedural justice that are now too frequently ignored in the rush to secure convictions.

Thanks to Jessica Franklin for sending me the link!