Professionals in the criminal justice field have the discretion to make many ethical choices throughout their careers. These choices are so significant that their outcomes can determine the futures of those involved. An ethical choice that prosecutors have to make daily, revolves around plea bargaining. Plea bargains are negotiations for contracts between the prosecution and the defense in an attempt to get them to plead guilty (“Plea Bargain. “). The prosecutor offers to reduce the severity or the length of the defendant’s punishment in exchange for the defense’s agreement to plead guilty (“Plea Bargain. “).
Sometimes plea deals even require the defendant to testify against someone else, so that they can be convicted of a crime (“Plea Bargain. “). When accepting a plea bargain, defendants effectively waive 3 constitutional rights protected under the Fifth and Sixth Amendment: the right to a trial by jury, the right against self-incrimination, and the right to confront witnesses (“Plea Bargain. “). It is estimated that about 90 to 95 percent of all federal and state cases are resolved through plea bargains (Devers 1). This means that the overwhelming majority of cases never reach trial and are actually settled outside of the courtroom.
That begs the question, why would the accused surrender their rights granted by the U. S. Constitution when they have not yet been proven guilty? When defendants turn down a plea bargain, they run the risk of losing their trial and thus may face harsher sentences than what was offered by the prosecution. In a way it becomes a psychological game of evaluating risks. You can go to trail and not be found guilty, but if you fail, you’re could be worse off than if you had taken the deal. In the minds of many, taking the plea bargain is the better alternative because it is safer than going to prison for a long period of time (Schulhofer 1982).
This is true for even for those who are actually innocent, which makes the situation more precarious because the prosecution could be sending an innocent person to jail because of the pressure they have put on them (Schulhofer 1981). Plea bargaining has created a system where it is favorable for some innocent people to plead guilty, which should be unacceptable in a system of justice (Mangino). From an ethical formalism perspective, the inherent nature of an act is the determinant for what is considered ethical and unethical (Pollock 35).
Even actions that have positive results can be deemed as unethical if the individual had bad intentions or an ulterior motive (Pollock 35). After thinking through different situations, I have found that plea bargaining cannot be ethical from an ethical formalism approach. To start, if the lawyers aren’t concerned with due process for the defendant or proper justice, then whatever actions they take are considered unethical. For example, many accuse the courts of utilizing plea bargaining for the sole purpose of quickly reducing the number cases and saving resources (Devers 1).
Working out a plea deal would be unethical because it is not factoring in whether the defendant is innocent or guilty; the focus is on not going to trail. Plea bargaining isn’t even ethical when attempting to use it to gain a testimony from the defendant about someone else. When prosecutors do this they are using the defendant as a means to an end; that end being the conviction of another offender (Pollock 36). If plea bargaining is unethical in both of those scenarios, then it would serve no other purpose than to pressure the innocent and reduce the punishment of the guilty.
One last scenario could be that the prosecution knows they will lose a case, but the defendant’s lawyer is incompetent and they accept the plea deal. In this situation, the prosecution is committing an unethical act, even if a guilty person is convicted, because they were being deceptive and had ulterior motives when offering the plea deal. From a utilitarian perspective, ethical action is determined by the consequence of the action; negative outcomes, are caused by unethical action, while positive outcomes are caused by ethical actions (Pollock 38).
Even actions that may seem bad can be ethical if they result in the greatest good for the greatest number of people (Pollock 38). As it concerns plea bargaining, it could either be ethical or unethical depending on the circumstance. Unlike ethical formalism, ulterior motives don’t matter from the utilitarian approach, only the final outcome. Using plea bargains to get defendants to testify against someone else is actually an ethical action because you are able to put away another person who committed a crime.
However. f the person is actually innocent then the use of plea bargaining is unethical because it resulted in an innocent person being put away. The same can be said if a plea bargain pressures an innocent defendant into pleading guilty because they fear a longer or harsher sentencing. Another situation where plea bargaining would be unethical, is when a person who commits a terrible crime gets a reduced sentence because they took a plea deal. That offender could be seen as escaping the maximum amount of sentencing simply because the court system didn’t want to put the time and resources into dealing with them.
Both of these situations would be viewed as serious miscarriages of justice. One last situation dealing with plea bargaining could be the scenario where the prosecutor knows they would most likely lose a trail, but offer a plea bargain to a defendant with an incompetent lawyer. This time if the guilty defendant took the deal, it would actually be an ethical action because the defendant would have gotten away had the case gone to trail, but it is still, and always, unethical if an innocent defendant ends up in jail.
A personal value of people that engage in this behavior could be a strong desire to win or achieve success. When a prosecutor gets the guilty verdict they have won a case, thus gratifying someone with a competitive nature. By that logic, the more guilty verdicts you have, the more victories you can claim and attribute to your successes as prosecutors. Even an innocent person’s guilty verdict is technically a victory according to this value. Another value could be along the lines of putting your job before your personal beliefs.
If you put aside your personal beliefs for the sake of your job, nothing is holding you back from only seeking the guilty verdict except your perception of what a prosecutor is supposed to do. Some prosecutors may even believe that just your involvement in the system mean you must be guilty of something and therefore deserve to go to jail. I doubt that many people have this particular value, but circumstances do exists where prosecutors have a presumption of guilt for all those accused of a crime.
One more value could be a sense of compassion, but it would only be for the victim of a crime. The prosecutor may strive to get the guilty verdict by any means possible, even if it cannot be achieved through a trail. If the prosecution can convince the defendant and their attorney to accept a plea deal, the criteria for a conviction are drastically reduced. One professional value that would cause individuals to engage in this behavior is cost and time efficiency. Plea bargaining has been described as “the grease that keeps the criminal justice system churning” (Mangino).
The more plea agreements you make, the defendants pass through the system which is reducing the cost and time spent. Another professional value the prosecutor could have is a duty to assure justice for the victim of a crime. This sense of distributing justice also be seen as personal value, which could result in the prosecutor become overzealous in their attempt to get the guilty verdict. With their overzealousness come mistakes that might result in guilty defendants walking free and innocent defendants behind bars.
This issues that come with plea bargaining are difficult to address without a structural reform within the current criminal justice system. Plea bargains are favorable in Herbert Packer’s crime control model of the criminal justice system, which resembles an assembly line (Roach 676-677). The least amount of time possible is spent on each of the accused in order to keep the constant stream of offenders flowing through the system. Instead of starting with a presumption of innocence, in a way there is a presumption of guilt that the offender has to address before reaching the position of a presumption of innocence.
Of course it is impractical to just do away with plea bargaining and have a jury trial for every single person accused of a crime; there simply isn’t enough labor force and resources to support such an initiative (Devers 3). However, with 90 to 95 percent of people pleading guilty, prosecutors should stop using plea deals as a go to for every case that is brought to them (Devers 1). A starting point would be, at the very least, trying to restrict plea deals to defendants that can provide information or testimony that would lead to the conviction of a criminal.
Or plea deals can be restricted with guidelines and only used for specific crimes (Devers 4). Another option would be to take a portion of discretionary power away from the prosecution. Some research has shown that prosecutors will push for harsher punishment if the defendant did not accept their plea deal (Devers 2). This works as a scare tactic and against anyone that is accused of a crime be they guilty or innocent. It is ridiculous that a defendant would be penalized for exercising their constitutional rights, simply because the prosecution wants them to accept the established presumption of guilt.
It is possible that involving the judge and defense attorney or even a separate entity into the process would make it more of an equitable system (Devers 4). Taking any one of these measures would move the system as a whole towards Packer’s other model, the due process model (Roach 680). This model focuses on protecting the due process rights of all people accused of a crime and thus protects the constitutional rights of all individuals (Roach 680). Even with all of the issues presented, plea bargaining is still part of the criminal justice system.
When used appropriately, it is an effective means of easing the heavy burden put on the system by the large volume of crime committed across the nation. It could be that perhaps the fault lies within the system itself, rather than the use of plea bargaining. In the coming years, it will be interesting to see how, if at all, the massive prison population impacts the use of plea bargaining. Will it reduce the usage of the method in order to curb soaring inmate numbers, or will it continue on and increase that number?
