Plea Bargains

A "plea bargain" is a deal offered by a prosecutor as an incentive for a defendant to plead guilty. If every case in the justice system went to trial, the courts would be so overloaded that they would effectively be shut down. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial.

Plea bargaining consists of the exchange of any actual or apparent concession for a plea of guilty. Nevertheless, the term sometimes is used informally to include discussions about other things. For example, when a prosecutor offers favorable treatment to a defendant in exchange for the defendant's testimony against other suspected offenders, the prosecutor may refer to this offer as plea bargaining. Similarly, a defense attorney who approaches a prosecutor to seek a dismissal of pending criminal charges may refer to their discussion as plea bargaining. These uses of the term, however, seem imprecise. An unqualified dismissal of charges involves neither a plea nor an exchange, and a prosecutor's exchange of concessions for a suspect's or a defendant's testimony may occur without the entry of a plea of guilty. Under the definition offered above, plea bargaining does not include pretrial diversion. Although diversion is often the result of a bargain and may be granted in exchange for concessions (for example, a defendant's agreement to participate in a specified treatment program), it does not lead to a conviction on a plea of guilty. Instead, if the defendant complies with the required conditions, the pending charges are dismissed, and the case is thus "diverted" from the criminal justice system. It is common to distinguish between express and implicit plea bargaining. Express bargaining occurs when a defendant or his representative negotiates directly with a prosecutor, a trial judge, or (very rarely) another official concerning the benefits that may follow the entry of a plea of guilty. Implicit bargaining, by contrast, occurs without faceto-face negotiations. Officials—sentencing judges especially—establish a pattern of treating defendants who plead guilty more leniently that those who exercise the right to trial, and defendants therefore come to expect that the entry of guilty pleas will be rewarded.

Negative Overview There really aren't that many choices for the negative. Other than some silly deconstruction of the notion of justice that results in the claim that "since the concept of justice is meaningless no practice can rightly be termed 'unjust,'" the negative's strategy is to argue, simply, that plea bargaining in exchange for testimony is just because it is elicits testimony necessary that can be used to imprison criminals that society needs to get off the streets. The picture the negative will want to paint is of the state offering a petty thief a deal to avoid a lengthy prison term in exchange for testimony that would get a mass murderer off the streets. The negative wants to make it seem that the person whose testimony is being purchased through a plea bargain will still receive a just amount of punishment for a crime that he or she actually committed and that he or she will offer truthful testimony absolutely necessary for the state to convict a ruthless criminal. The negative might try a strategy of trying to avoid a detailed discussion of the current practice of plea bargaining in the United States and to argue, instead, that the topic is asking simply whether the practice is in principle just. This would allow the negative to offer some criteria for when it is just for a prosecutor to offer a person a plea deal in exchange for testimony. This way the negative can avoid having to defend the status quo and potentially even offer a plan that might improve on it. Being able to set a set of criteria under which plea bargaining in exchange for testimony would be just in the United States saves the negative the trouble of showing that on balance the system is working properly in the United States today, which might simply be too difficult to prove. The negative's best arguments are pragmatic ones that focus on the moral obligation the state has to protection of individual rights. If the state determines that, on balance, plea bargaining in exchange for testimony results in more criminals off the streets and fewer innocents behind behind bars or victims of crimes, it better protects the rights of its citizens. Negative will need to weigh carefully how far to go in shifting the balance of power between the prosecution and the defense. While it's possible to argue that by offering some defendants a chance to plead guilty to a lighter sentence benefits them, on balance plea bargaining in general and plea bargaining in exchange for testimony specifically seems to give prosecutors a tool to guarantee convictions. Only in cases where the accused are actually guilty and are being offered a lighter sentence than they might get if they lose at trial can an accused be said to have benefited from a plea deal. Further, while there are safeguards built into the United States' criminal justice system, the negative would be foolish to assert that there are no dangers whatsoever involved in the process. Negative might try to argue that United States criminal justice system ought to abandon Blackstone's ratio and not weigh protecting the innocent against false conviction more heavily than convicting the guilty. It's a risky strategy, but it could work. A better strategy, however, would likely be to argue that the threat to innocents in this case is minimal if not negligible on account of the checks inherent in this system. Given that the

United States Court system is overwhelmed and plea bargaining is a practical if not moral necessity at this point, the negative might be on firm ground here, particularly given that plea bargaining and plea bargaining in exchange for testimony have been practiced for years now with the Supreme Court's mostly tacit consent.

Affirmative Overview An important strategic choice the affirmative must make is whether to argue against the practice of plea bargaining as whole or just plea bargaining in exchange for testimony. Affirmative could try to argue first that plea bargaining is in general unjust but then contend that even if this weren't true that plea bargaining in exchange of testimony is unjust. Adopting a two tiered "even if" approach to affirming is always somewhat risky since the danger is the appearance that the affirmative is contradictory. Further, the negative could always concede that plea bargaining in general is wrong, but that when its necessary to elicit testimony it is just. If affirmative chooses to argue against plea bargaining in its entirety, the debate will likely center on the potential injustice of trying to convince an innocent person to plead guilty to a crime he or she didn't commit or of allowing a criminal to receive a less severe punishment than justice might require. The question that affirmative will need to consider, if choosing to argue against plea bargaining in and of itself, is why the state engages in such a practice. In the United States, as noted above, the main reason that plea bargaining takes place is to avoid the uncertainties of a trial. Attorneys for the prosecution and the defense will carefully weigh what they believe to be their chances of success if a case goes to trial and weigh that against the offer being made by the other side. A prosecutor might offer a defendant the chance to plead guilty to a lesser charge in order to avoid the defendant being acquitted of a more serious charge and set free. Double jeopardy prevents the state from putting a person on trial for the same offense more than once. An interesting question is whether the process of plea bargaining is one that leads to the most just outcome. The goal of any criminal justice system ought to be to convict the guilty and free the innocent. Now, the American criminal justice system rests on the assumption, carried over from the British common law tradition, that the injustice of convicting the innocent is greater than that of allowing the guilty go free. William Blackstone's well known maxim that it is "better that ten guilty persons escape than that one innocent suffer" is one that rests at the core of the American criminal justice system. In American criminal courts, the burden of proof rests squarely on the state: people are presumed innocent until proven guilty. Some negatives may try to argue that in determining the justice of plea bargaining that convicting the innocent is no worse than acquitting the guilty; affirmatives should be prepared to refute such a claim.

Jamie