Bargaining in the Guise of Justice? The Pro’s and Con’s of Plea bargaining In the United States.
The creation and application of plea bargaining in our legal system has been in existence since the early seventeenth century. However, for as long as plea bargaining has been utilized it is unclear how this process fits into our legal system. The goals of our legal system are retribution, deterrence, incapacitation or rehabilitation, however plea bargaining fails to support any of these goals (Stitt & Chaires, p.73). Currently plea bargaining is utilized in approximately 95% of all criminal cases in the United States (Walker, 2006, p. 169) and with the enforcement of due process laws plea bargaining has been institutionalized in our society. In the United States it is clear that it is easier to continue present practices in regards to plea bargaining than to implement changes to the current system. The roots of plea bargaining can be traced back to the seventeenth century in England, however the process was not as straight forward as it is now. In this time a criminal could plead guilty and then he would be asked to offer up his accomplices, this in turn may have granted the defendant a pardon from death. However, being a snitch in society was not a preferable option and plea bargaining was not utilized very frequently. In the nineteenth century plea bargaining was still a relatively new option, and it was rarely utilized in the legal system. This was mostly likely due to the fact that there were over 200 offenses on the books that carried the death penalty. It is clear that there was no incentive for the defendant to consider plea bargaining as a viable option, because if the King or local magistrate did not accept the information then the defendant had already plead guilty and would most likely be killed. During 1860’s there was an increase in the number of civil cases that the courts were required to process. With railroad and factories being sued for human rights infractions, the legal system became severely burdened, making the processing of criminal cases almost impossible. At this time a more organized process of plea bargaining was introduced in the legal system to assist judges to move cases more rapidly through the system. However, plea bargaining was still not utilized by all jurisdictions and many judges felt that plea bargaining excluded then from effectively overseeing cases. Judges were troubled by the fact that they would be deciding the cases, but would not be the individual to make the decisions regarding offense charge or sentence. Although judges were starting to consider the use of plea bargaining more frequently, plea bargaining for all intents and purposed remained a judicial secret until about the 1960’s; prior to this time plea bargaining remained an option, but usually was utilized during sentencing and not utilized in the mainstream judicial process. At this time plea bargaining was used, but predominantly not out in the open. The public was usually not aware of the process or that it even existed. However, the application and utilization of plea bargaining was about to change, because of the rapid changes our legal system and society experienced; our reliance or extension of the plea bargaining option increased. During the 1960’s the due process revolution would change the way that plea bargaining was utilized and in many aspects helped to indoctrinate plea bargaining into society (Stitt & Chaires, 71). Prior to the due process revolution it was not mandatory for a defendant to be supplied with counsel in all felonies. Also, prior to the 1960’s defendants were not always informed of their rights, because many defendants did not know their rights or have counsel to explain their rights, utilizing the plea bargaining option was not considered a good option. In many ways I still think that our society suffers from defendants not really knowing their...
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