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Plea Bargaining: State Provisions

Plea bargaining is not a creature of law: it is one of legal practice. Therefore, state laws do not create the right to plea bargain, nor do they prohibit it, with one exception. In 1975, Alaska's attorney general at the time, Avrum Gross, banned plea bargaining in Alaska. Although the ban remains officially "in the books," charge bargaining has become fairly common in most of Alaska's courts. Nonetheless, Alaska has not suffered the unmanageable caseloads or backlogged trials that were predicted when the ban went into effect.

Even today, however, this ban reflects serious concerns on the part of both liberals and conservatives regarding plea bargains. These concerns center around entirely different kinds of potentially negative outcomes.

No Justice For The Accused

The liberal complaint with plea bargaining relates to the trial as a mechanism for justice. More than 90% of criminal cases are disposed of with a plea bargain in many jurisdictions. Critics feel that many innocent parties are accepting plea bargains in order to avoid the expense, stress, and risk of trial. If this is true it represents a terrible loss of confidence in the criminal justice system and suggests that only the wealthy can afford the cost and risk of pursuing their rights vigorously. Plea bargains place more power in the hands of prosecutors, whose exercise of discretion receives less oversight than that of judges, which increases the risk that similarly situated parties may face very different outcomes for the same crime. This also undermines the fairness of the judicial system. Particularly liberal jurisdictions may limit the availability of plea bargains.

No Justice For Victims

The conservative complaint with plea bargaining is focused on the fact that plea bargains, by their nature, are typically less severe than the potential punishment an individual would face if they went to trial. Additionally, critics feel that the commonness of plea bargains eliminate the opportunity for victims to confront the criminal that has wronged them. As with the concerns voiced by liberal critics, there is a concern that the legitimacy and fairness of the criminal justice system is placed at risk by the large number of plea agreements. States seeking a "tough on crime" posture may limit the availability of plea bargains.

Judicial Economy

On the other hand, courts tend to favor plea bargaining. Overloaded dockets, underfunded courtrooms, and the specter of appeals all create incentives for courts to accept and even encourage plea bargaining. A plea bargain ensures that a case doesn't go to trial, comes off the docket, and consumes no further time or resources for a court. Appeals of plea bargains are infrequent and rarely successful, since, unlike a post-trial appeal, factual issues are rarely raised and a legal decision is not rendered. As such, a plea bargain is seen as encouraging judicial economy in most states.

Ultimately, conservative groups tend to have been the more aggressive opponents of plea bargaining. In addition to the Alaskan ban there have been calls from then-President Richard Nixon for a nationwide ban, a limited ban by then-Governor Nelson Rockefeller in New York, and a general proliferation of statutes establishing mandatory sentencing for specific crimes.

If plea bargaining appears at all in state statutes, it is generally in the context of being prohibited or restricted for certain matters or types of cases. For example, many states have prohibited plea bargaining in drunk driving cases, sex offender cases, or those involving other crimes that place the public at risk for repeat offenses or general harm. Another common provision, found in a majority of states, is a requirement that a prosecutor must inform a victim or the victim's survivors of any plea bargaining in a case. In many states, victims' views and comments regarding both plea bargaining and sentencing are factored into the ultimate decisions or determinations.

At least one state (Alabama) has expressly ruled that once a plea bargain is accepted, or there is detrimental reliance upon the agreement before the plea is entered, it becomes binding and enforceable under constitutional law (substantive due process). Ex Parte Hon. Orson Johnson, (Alabama, 1995).

Consult with an Experienced Criminal Defense Attorney at No Charge

While plea bargaining is not a constitutionally-guaranteed right, you can expect it will be part of your criminal defense strategy. No matter what criminal matter you're facing, only an expert criminal defense attorney can be relied on to negotiate the best possible plea agreement for you. So if you've been charged with a crime, you should immediately consult with a criminal defense attorney at no charge to better understand your situation.

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