Howard Burton - Criminal Justice: An Examination: A Conversation with Julian Roberts

Many people find the whole idea of plea bargaining deeply troubling. To them, the very notion that those guilty of a serious crime could manage to finagle their way to a reduced sentence through a complicit state judicial apparatus is little less than a travesty of justice: a deeply immoral slight to victims, and yet another sign of a society more motivated to cut costs and clear courtroom backlogs than punish wrongdoers and protect the innocent.

Julian Roberts, however, disagrees.

Julian, Professor of Criminology at the University of Oxford and an international expert on sentencing throughout the common-law world, certainly doesnt take criminal sentencing lightly. Nor is he insensitive to various structural inadequacies of the plea-bargaining process.

Plea bargaining is one of the most controversial elements of criminal justice of sentencing in the adversarial world. Its particularly controversial in the US where prosecutorswho are usually elected rather than appointed, as they are in other common-law countrieshave a great deal of power and discretion to negotiate with the attorney for the accused.

And the criticism is that they exploit, and in some cases abuse, that discretion; and much harsher penalties are imposed on defendants who elect to go to trial and require the state to proceed to convict or attempt to convict. This is why some people call it the trial penaltyrather than a plea bargain sentence: people who exercise their constitutional right to a trial by their peers are punished additionally. So the trial penalty obviously attracts a lot of criticism.

In particular, he cautions, the question of the trial penalty becomes increasingly worrying when prosecutors have the opportunity to offer vastly reduced sentences to defendantsa state of affairs that might even compel some who are, in fact, innocent to accept a guilty plea out of a combination of sheer desperation and a resounding lack of confidence in the likelihood of ever receiving a fair trial.

The magnitude of the reduction that we offer defendants who enter a plea of guilty is critical to the debate. If we operate a modest reduction, then the chance that an accused will enter a guilty plea when he is, in fact, not guilty of the crime as charged is relatively remote, I think.

The danger arises from having a lot of prosecutorial discretion and also a very substantial reduction for a guilty plea. But if we manage those two, if we place limits on the degree to which the prosecutor can bargain or discuss with the attorney for the defendant, and if the reduction for the guilty plea is relatively modest as well, then the rights of the defendant are well-protected, or better-protected.

So thats one issue addressed. But what about those who maintain that any reduction in sentencing for those who admit their guilt is morally unacceptable? Well, Julian believes that they are misguided too, failing to recognize fundamental attributes of justice that all of us are intimately familiar with from our own personal experience.

Many people might ask, Why do we give sentence reductions to people who plead guilty? Arent most of them guilty anyway? After all, isnt it the case that the conviction rate is about 80%, 90%? Most people who are charged, are found guilty. So why would we offer a discount to somebody for pleading guilty?

But thats a bit of a misperception. Its not a discount, which we just routinely hand out to defendants who elect to forgo their right to trial. Its an acknowledgement that there are different kinds of people charged with criminal offenses.

Some individuals wish to take on board their responsibility, acknowledge the fault that they have committed, provideto the extent that they cansome redress, mitigate the harm created by the crimewhether its with respect to the individual victim or the wider community. And one way in which they can do that is by entering a guilty plea.

If we back up a little bit and just think about whats going on here on a slightly higher conceptual level, what were talking about is negotiated justice, and not negotiated necessarily in a slippery or inappropriate way.

There is an incident which has given rise to a criminal charge; and why would we not at least permit the state to discuss with the accused or the suspect options in which this particular incident may be resolved to the benefit of the alleged victim and of the state?

In everyday life, when somebody wrongs us in some informal, non-criminal capacity, we generally talk about things. So a strictly legalistic model where every criminal charge results in an appearance in court and a trial on the facts is not necessarily the most effective or appropriate model.

Perhaps, in other words, one way to ensure that our criminal courts function as well as they possible can is to do our utmost to use them as sparingly as possible.