Pitfalls of Plea Bargaining

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!

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Significant Canadian Labor Decision on Right to Bargain

Canadianflag David Doorey (York Univ.) sends along word that there was a big decision this week from the Ontario Court of Appeal that ruled unconstitutional a statute that did not require employers to bargain collectively with unions selected by  a majority of employees, and that provided for no dispute resolution mechanism to deal with bargaining impasses.

Although the statute in question applied only to agricultural workers, David points out that it is an interesting case in the development of the constitutional right to collective bargaining that they have had in Canada since the a decision of the Supreme Court in 2007.

Here’s David’s blog entry on it, which links to the decision in Fraser v. Ontario, so that readers from other countries can keep up on these important labor developments.

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Outlawing Amnesty?

Lisa Laplante, in response to last month’s “question of the month,” priorities for the next president, blogged about the need provide accountability for torture.  I noticed that in her comments on a recent post on Opinio Juris, she wrote that “[t]he issue of amnesty could become one of the most contentious” in the debate about Bush Adminstration accountability for torture and other human rights violations.  She also linked to her timely article, “Outlawing Amnesty:  The Return of Criminal Justice in Transitional Justice Schemes,” which 

discusses the Barrios Altos case, a seminal decision issued by the Inter-American Court of Human Rights in 2001, that declared the amnesty laws promulgated in 1995 by former Peruvian president Alberto Fujimori to be contrary to international law. Recent scholarship has ignored this decision, or otherwise interpreted it overly narrowly, despite its potentially sweeping impact on the field of transitional justice. Thus, this article responds by offering a more in-depth understanding of the Barrios Altos decision in order to inform the ongoing academic debates on the evolving doctrine on amnesty in transitional justice schemes. It also shares the particular case study of Peru to show how international law directly impacts national transitional justice experiences. This article suggests that the truth v. justice dilemma may no longer exist: instead, criminal justice must be done.

The article is now on my reading list.  (The shorter one, the one with things I will probably actually get around to reading.)

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