The Impropriety of Plea Agreements: A Tale of Two Counties

David Lynch's article draws on his own personal experience as a public defender and an assistant district attorney in two different counties. He takes an insider's perspective at how simple it really could be to put more criminal cases in a courtroom rather than resorting to plea bargaining. Much of his evidence is anecdotal, however despite this, it does not sound as if it only occurs in the region he was working. The problems he discusses make sense that they could take place anywhere across America.

One anecdote he offers is his experience as a public defender bringing a case to trial. The judge wanted to postpone the trial for his own personal reasons. He inisisted that his client not be left in a jail for two months. The judge granted the trial, but was openly hostile to both the defendent and Lynch himself, eventually delivering both a guilty verdict, and a trumped up sentence.

He then offers a description of his move to be an ADA at another county. He explains that suddenly a trial wasn't such a scary thing, and even offers one anecdote, where the defense attorney actually turned out to be so afraid of goign to trial that after stubbornly refusing to bargain, he instantly transformed when he realized that a case was actually going to go before a jury.

I really liked this article. A lot. Lynch's accounts make a lot of sense, and are written in a very readable manner. They also explain what the system looks like from the inside, rather than the trumped up, overworked impression most lawyers portray. Lynch shows that a system that abolishes plea bargaining is not only feasible, but in his own experience worked out to the benefit of all involved. He seemed to get a greater satisfaction out of his work when he saw it through to the end, and there was much less anonymity between judges and lawyers who wanted a trial. The only question I have to raise is the one of how much his changed position between the counties altered his viewpoint. I understand that the statistics are factual either way, but it does seem that being on the prosecution end of things would inherently feel more fulfilling than being a public defender with openly hostile clients. This is just a small concern though, overall I still think his insights are incredibly valuable.

A Wake-Up Call from the Plea Bargaining Trenches

Schulhofer's article explains how plea-bargaining systems are an inherently unfair system. This is due to conflicts of interest on the parts of both prosecution and defense attorneys. Both parties are able to accomplish their "job" with minimal effort, and in a shorter amount of time than would be taken if all trials took place in the adversarial system.

I really liked the way this article was written. It was in clear, easy to understand language, and got right to the point. There was a very clear lack of unnecessary fluff. This strikes me as a very interesting subject that I would like to hear more about. The idea of abolishing plea-bargaining systems seems extreme, but according to the limited information presented here it sounds like it would be a much fairer system to the defendants, who currently are simply pushed to plead out. I guess the major question is: Is this encouragement in their best interest or the lawyers'?

Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack-Cocaine and Powder-Cocaine Cases

This article by Hartley, et al. takes a more in depth look at an issue that most of us have probably heard about in one way or another at this point in our lives: the disparity for sentencing guidelines between crack and powdered cocaine. There has been much contention that the reason for these difference is race related, because of who uses the drugs. Hartley takes a different approach, however. Rather than looking at the sentencing guidelines Hartley recognizes that there are loopholes to the mandatory minimum sentences, loopholes that judges and prosecutors are very familiar with. One loophole occurs if a defendant provides information that leads to the "prosecution and conviction of another offender." Hartley examines these cases and their frequency between the two drugs, and across race and gender lines.

The part of this article I actually found most interesting came in the beginning when they were discussing the amount of discretion that really has been placed in the hands of our prosecutors. They discuss the 1984 federal act under which judges were mandated minimum sentences for certain crimes. This act essentially took discretion away from the judges, and forced them to operate within a narrow set of guidelines. However, Hartley points out how there has been no such standarization for the prosecutors. The prosecutors are the ones who can decide what charge is applied to a case, the severity of the charge, and when it is appropriate for charges to be dismissed. To this list of discretions Hartley, et al. would also add the mitigation of sentences, such as in cases where the defendant provides useful information for another case.

What has essentially happened is the power that judges once had has been completely transferred over to the prosecutors, a party that one could argue is far less partial than a judge. The prosecutors have a stake in the number of convictions they attain, whereas the judge has more of a stake in justice. Knowing that the judges are held to minimum sentences the prosecutors can also adjust their charges in order to get the sentence that they would want for an individual. I guess it just seems a little scarier to see this power in a prosecutor's hands, rather than a judges.