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Resolved: In the United States, plea bargaining in exchange for testimony is unjust

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In the United States, plea bargaining in exchange for testimony is unjust.

Contents

Background and Context of Debate:

A plea bargain is a process in which the defendant arranges a ‘deal’ with the prosecution. A plea bargain essentially means that a defendant charged with multiple crimes will plead guilty to a certain charge in order to escape going to trial for a more serious charge. In the United States, the majority of criminal cases are settled through plea bargains.

It is important to recognize, however, that while the majority of criminal cases in the United States never go to trial, that this does not mean that in the majority of plea bargains include an agreement to testify in court. There have been some notable cases in the news of late where accused criminals agreed to testify against co-conspirators with the understanding that they would plead guilty to less serious charges. Oddly, both cases involved athletes: Michael Vick and O.J. Simpson. In both cases, prosecutors sought incriminating testimony in order to improve their case against the star athletes.

However, it is worth keeping in mind that in most cases plea bargains are entered into simply to avoid going to trial. Criminal trials are basically winner take all propositions, which make them relatively risky for both prosecution and defense. Further, in the United States, where the criminal justice system is crowded with cases, plea deals are sometimes offered simply to resolve cases quickly and more efficiently. Whether this results in defendants pleading guilty to crimes they didn't commit or to lesser crimes than they actually did commit is on open question, one that ought to be researched and explored by debaters preparing to debate these cases.

Could plea bargaining in exchange for testimony be just in other countries but not in the United States? Is there something that makes plea bargaining in the United States different from plea bargaining anywhere else? If so, what? If not, then what's the importance of this phrase?

To begin to explore answers to these questions, it is as always important when discussing any criminal justice issue in the United States to recall that the United States federalist system. Though the Constitution, as interpreted by the Courts and years of practice, has set a certain framework within which they must operate, state and local governments are provided with a wide degree of latitude in setting up their criminal justice systems. For this reason, the way that plea bargaining is used in the United States can vary from jurisdiction to jurisdiction.

Motion analysis

An affirmative could try to argue that, on balance, the way jurisdictions employ plea bargaining in exchange for testimony in the United States is unjust. In this case, the affirmative would not be arguing that plea bargaining in exchange for testimony is inherently unjust, but that it is simply unjust the way it is generally done in the United States. To make this case, though, the affirmative would need to set up criteria for showing when plea bargaining in exchange for testimony would be just and then present hard evidence that in the United States most jurisdictions do not satisfy these criteria when bargaining for testimony. This would probably be a tough a case to make, since it is unclear how one could establish criteria for the just exchange of testimony for a lighter sentence and then be able to show, empirically, that these criteria are not met in a significant number of cases where bargaining takes place. There are some indicators, like the well documented difficulty the poor have in securing adequate legal counsel, which could suggest that defendants are at a great disadvantage when dealing with the government in many cases. Still, the burden of proof of the affirmative in this instance would be quite heavy.

If the affirmative argues that the in the United States, currently, the the use of plea bargaining to get testimony in a trial, negative will want to raise the question of whether the affirmative believes the system is beyond repair. If the affirmative tries to argue that it is, then the debate will effectively become about the inherent injustice of plea bargaining in exchange for testimony. If the affirmative argues that it might be repairable, but that the affirmative's burden is only to show that plea bargaining in exchange for justice is unjust presently, then the debate could get rather messy. The affirmative that adopts this strategy should be armed with a lot of evidence showing that plea bargaining in exchange for testimony as practiced in the United States today is unjust. It might prove difficult for the negative to refute each piece of evidence and, therefore, the negative would need to focus on the criteria that the affirmative offered as a basis for weighing this evidence. Additionally, the negative should of course question whether the evidence the affirmative presented showed more than just isolated instances of the unjust use of plea bargaining for testimony was unjust. Finally, the the negative should question the affirmative's assertion that affirmative only needs to show that plea bargaining in exchange for testimony is currently being misused in the United States as opposed to it being inherently unjust for the practice to be used in the United States.

An affirmative could, of course, also try to argue that in some cases in the United States plea bargaining in exchange for testimony is unjust, but few judges are likely to accept that affirmative has so light a burden in this round.

The most promising route the affirmative can take is to argue either that there is little significance to the phrase "In the United States" in the topic, that the topic could just as easily have stipulated "In a just society" in place of "In the United States," or that there are features of the United States constitutional framework that make plea bargaining in exchange for testimony unjust. Of these two choices, the latter is probably the more promising.

In arguing this topic, however, it is important that both sides consider whether they're arguing for or against plea bargaining in and of itself, or simply the practice of plea bargaining in exchange for testimony.

Another thing to keep in mind is that plea bargaining in exchange for testimony, though not as common as plea bargaining is not something being proposed by this topic but a practice that's taken place in the United States for some time now. This means that the affirmative needs to be careful when offering cause and effect arguments. That is, the affirmative can't say "if we allow plea bargaining in exchange for testimony then scores of innocent people will be convicted of crimes they didn't commit" without having hard evidence to back this claim up. If plea bargaining of this type has bad effects, these effects should already have occurred.

It is also important to note that at the point in the criminal justice process when plea deals are offered a plea bargain in exchange for testimony both the person offered the plea and the person against who testimony, in the United States' criminal justice system, retain a presumption of innocence.

Westlaw's Law.com defines testimony as "oral evidence given under oath by a witness in answer to questions posed by attorneys at trial or at a deposition (questioning under oath outside of court)." Testimony is usually limited to bare facts; opinions and inferences are generally discouraged because they offer the opinion of the witness and consequently do not provide an objective account of the crime.

Since the topic does specify "testimony" as opposed to simply "information", one affirmative strategy could be to argue that the defense does not have an equivalent ability to bargain for testimony and since the testimony gained through plea bargaining in exchange for testimony is inherently suspect, that bargains ought not be made for the sake of testimony but that bargains may be used to gain needed information.

There may be cases, an affirmative could argue, when the government may determine that the need to gather information outweighs the potential injustice of letting a suspect plea bargain, but that bargaining for information is different from bargaining for testimony.

There will be other negatives who might try to question the just/unjust dichotomy and argue that there is a third category of actions: actions that are neither just nor unjust. Deciding what to call this category of actions, though, is something that should immediately give these negatives a degree of self-doubt. One would think, if there was a category of actions that we neither just nor unjust, that there would be some obvious word that could be used to describe those actions. No such word exists. One could call an action "morally neutral," in this case meaning neither right nor wrong. For instance, when one looks at a menu in a restaurant and has to decide between the carrots or peas as a vegetable, few would describe choosing one vegetable over the other an immoral or for that matter unjust act. It's trivially true that the choice between the side dishes on a menu is not a decision of much moral significance. However, in terms of justice, there is no way to say that a choice like this "ajust." The choice of either peas or carrots is, in fact, just. This is trivially true, but nonetheless worth noting: in choosing between eating peas or eating carrots the diner is obviously choosing between two just options.

So that leaves us with the more pressing question of figuring out a criterion for determining whether plea bargaining in exchange for testimony is unjust. The hackneyed "giving each his or her due," though vague is nonetheless a good starting point. When it comes to criminal justice, most people have a general sense of what justice requires: punishing the guilty and protecting the innocent. At first glance, therefore, one could say that if plea bargaining in exchange for testimony does not insure that the guilty are punished and the innocent protected, then it would be unjust. Unfortunately, things aren't that simple. One of the problems that society's face in designing their criminal justice systems is determining how to properly balance a desire to protect the innocent and to punish the guilty. Clearly, putting criminals in jail protects the innocent public. However, we also realize that it would be wrong to protect society from shoplifters by chopping off their hands. Punishment needs to fit the crime, and one of the problems that plea bargaining in exchange for testimony raises is whether by giving some criminals lighter sentences than they perhaps deserve in exchange for testimony against someone else that an injustice has occurred. Is the wrong of letting one person get a lighter sentence than he or she merits offset by society gaining testimony that could be used against a more serious offender? Arguably yes, but the weighing mechanism that society uses in order to determine the justice of this transaction cannot be precise. Put simply, the scale of justice are not that easy to balance.

Another thing to consider is the specific context in which this resolution is set: the United States. There are three provisions of the United States Constitution that are relevant to this debate topic:

The Due Process Clause of the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (the italicized text is commonly referred to as the Due Process clause). Though originally only a restriction on the Federal Government, this restriction on the power of the the federal government is understood to have been incorporated by the Fourteenth Amendment and now applies to the States. The Sixth Amendment's guarantee of a right to a jury trial: " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." The Equal Protection Clause of the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In considering these three provisions of the Constitution, however, it is important for the affirmative to keep in mind that the Supreme Court has not had much to say about plea bargaining in exchange for testimony and given the prevalence of the practice one has little choice but to interpret the Court's silence as consent. The most important Supreme Court decision that dealt with plea bargaining dealt with a very narrow issue of someone accepting a plea arrangement in order to avoid a death sentence without in fact admitting guilt (see North Caroline v. Alfrod, 400 U.S. 25 (1970) .

One could be tempted to argue that the criteria to use when considering the justness of a part of the United States' criminal justice system ought to be whether the practice comports with the United States' Constitution. The only problem here is that the constitutionality of a practice, in and of itself, is neither a necessary nor sufficient condition to establishing its moral legitimacy. No better evidence of this can be found than in Article Four, Section 2 of the Constitution, which reads: " No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." Though this section of the the constitution was superseded by the Thirteenth Amendment, one could not reasonably argue that the practice of returning fugitive slaves to their master was ever just, even if until the adoption of the Thirteenth Amendment it was a practice not only permitted but required by the Constitution.

However, while constitutionality could not serve as a sole criteria for determining the justness of plea bargaining in exchange for testimony, this should not preclude the affirmative from running the argument that plea bargaining in exchange for testimony is unconstitutional. In doing so, however, the affirmative will have to explain why these provisions of the constitution are just in and of themselves and why their violation is wrong. The affirmative, though, can argue that there is an injustice in violating a just provision of a written constitution even that could trump the benefit that might be achieved through such violation.

A note on the NFL Definition

A Note on the National Forensic League's Definition: of Plea Bargaining in Exchange for Testimony The National Forensic League offers the following definition of plea bargaining in its topic overview topic overview: "the reduction in sentence for one guilty individual in exchange for information regarding another illegal act or guilty individual." This definition, which the NFL makes clear should not be quoted in the round, makes a questionable assumption: that both the person who offers testimony in exchange for a plea arrangement and the person against whom this information is used are in fact guilty. In the United States, individuals accused of crime are rightly considered innocent until proven guilty. Plea bargains are offered to defendants at a point in the criminal justice process when guilt has not yet been proven. Now, the assumption that an innocent person would never agree to plead guilty to a crime he or she didn't commit is a flawed one. An innocent person, fearing conviction for a crime he or she didn't commit, might reasonably choose to plead guilty to a charge simply to avoid being convicted of a more serious charge. Further, the fact that the prosecution has to offer a plea bargain in exchange for testimony suggests it does not have sufficient evidence against the accused to prove him or her guilty beyond a reasonable doubt. It is entirely within the realm of possibility, then, that a fearful but innocent defendant, fearing an unjust conviction, might decide to offer false testimony in order to secure a guarantee of a lighter sentence through an equally false plea of guilty to a false charge.

A note on the presumption of innocence

Though rightly considered a cornerstone of the United States' criminal justice system, the concept that a person is innocent until proven guilty is no where mentioned in the United States Constitution. In all likelihood, the Founders simply took this truth for granted, carrying it over from the British Common Law. Justice White, Coffin v. the United States, 156 U.S. 432 (1895), stated it best when he wrote: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. It is stated as unquestioned in the textbooks, and has been referred to as a matter of course in the decisions of this court and in the courts of the several states." This idea that justice demands that those accused of crimes should be considered innocent until proven guilty is not unique to the United States nor is it particularly new.

Alternative approach

Can Plea Bargaining in Exchange for Justice be "Necessary but not just?"

There are always some debaters, when confronted with a topic that asks if a given policy is just, who will try to argue that the policy is "necessary but not just." For instance, there are those who argue that the death penalty is not just, but "necessary." These arguments, however, are in almost every case wholly specious. In the case of this topic this is more true than in most.

First, there is no way that, strictly speaking, plea bargaining in exchange for testimony could really be called "necessary." Obviously, the prosecution could simply try to convict both defendants without offering one a plea bargain in exchange for testimony against the other. Some negatives might try to argue that the only way to elicit the testimony that the prosecution believes is necessary to gain a conviction is by offering a plea deal to another defendant. However, strictly speaking, this can't be true. There are other methods that could be used to elicit testimony other than through a plea bargain. For instance, the prosecution can offer something other than a plea bargain in order to entice a recalcitrant witness to testify. For instance, a prosecutor could offer a witness money for his or her testimony. This, indeed, is common practice when it come to expert witnesses. The prosecution could also, conceivably, use less savory means of eliciting testimony, like threats or even torture.

The affirmative might try to argue that having to offer one accused criminal a lighter sentence in exchange for testimony is in and of its unjust, and that even if doing so results in a greater good for society, there is no denying that an injustice has occurred in that an accused criminal has been offered a lighter sentence than he or she might have merited. The argument here would run along the lines that plea bargaining in exchange for testimony is nothing more than a "necessary evil." However, there really is no such thing as a "necessary evil" is as much of an oxymoron as a "deafening silence." For the affirmative to argue that it is necessary for the prosecution to offer a witness a plea deal, it would have to be the case that to fail to do so would be immoral. That is, the necessity involved in clearly not a physical necessity. The prosecutor is not compelled to offer a plea bargain in the same way that a rock thrown from a window will necessarily fall. The necessity in question is a moral necessity: the prosecutor who failed to offer a plea bargain, the affirmative has to be arguing, would be acting contrary to the demands of justice. However, how could it be wrong to do that which it would be wrong not to do? That is nonsensical.

When faced with a choice between two actions, both of which would produce some degree of harm, the only way it could be necessary for an agent to choose one course of action over another is if it would be wrong to choose one of the two alternatives. The fact that the agent might not have had a third option, which could have resulted in less or no harm to anyone, is unfortunate but not in it of itself immoral. However, as we have already discussed, there are obviously more than just two options at the prosecutor's disposal. In the end, the affirmative that conceded to the negative that plea bargaining in exchange for testimony is necessary has conceded the round to the negative.

Further, the assumption that both the affirmative and the negative who argue that plea bargaining in exchange for testimony is somehow necessary fails to recognize the fact that the criminal justice system requires that each person get a fair trial, not that certain defendants must, at all costs, be convicted. Given that every defendant is innocent until proven guilty, what moral necessity could there be to torture, bribe or coerce testimony against an accused? The prosecution's obligation is to prove guilty beyond a reasonable doubt. One could easily argue that if a prosecutor could really only convict an accused criminal using testimony that is elicited through a plea bargain, that there is obviously something lacking in the prosecution's case. This is particularly true when the veracity of the testimony cannot be independently verified.

Argumentation overview:

Pro

  • Debate:

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.

The question then is whether plea bargaining maximizes the chances of that only the guilty are punished for having committed crimes. Criminal justice is, unfortunately, not an exact science. John Rawls distinguished between three forms of procedural justice in his classic work A Theory of Justice:

Perfect procedural justice has two characteristics: (1) an independent criterion for what constitutes a fair or just outcome of the procedure, and (2) a procedure that guarantees that the fair outcome will be achieved. Imperfect procedural justice shares the first characteristic of perfect procedural justice--there is an independent criterion for a fair outcome--but no method that guarantees that the fair outcome will be achieved. Pure procedural justice describes situations in which there are no criterion for what constitutes a just outcome other than the procedure itself.[2] Criminal justice systems are an example of "imperfect procedural justice." The affirmative will need to argue that plea bargaining makes the American criminal justice system less likely to achieve the desired outcome, placing a premium on insuring that the innocent are not punished for crimes they did not commit.

Whether plea bargaining makes the United States' criminal justice system more or less just is to a large extent an empirical question. If plea bargaining makes it more likely for innocent people to go free and the guilty to receive punishments that they deserve, then it will be relatively difficult for the affirmative to prove the practice of plea bargaining unjust. Given that the vast majority of criminal cases in the United States never go to trial, and are instead settled through plea arrangements, for the affirmative to claim that somehow plea is unjust they would have to be able to give hard, empirical evident, that the status quo is not working in the United States. It's not enough for the affirmative to make unwarranted claims of cause and effect (e.g. "Plea bargaining will result in innocent pleading pleading guilty to crimes they didn't commit and guilty people getting lighter sentence). Given that plea bargaining has been such a large part of the American criminal justice for such a long time at this point, any claims that the affirmative makes about the harms that plea bargaining brings should be supported with evidence. Hopefully, people will be adding some references to studies of the affect of plea bargaining on the American criminal justice.

When it comes to plea bargaining in exchange for testimony, however, the affirmative could argue that this exchange is an inherently unjust means to achieve potentially just ends. The easiest way to illustrate will be to consider two other practices: bribery and torture.

Suppose a defendant, offers to donate a lot of money to charity in exchange for a lighter sentence? Most would agree that the wealthy ought not to be able to exchange money for a lighter sentence. In fact, one of the most common criticisms of the American criminal justice system is that the poor are far more likely to be convicted when they are charged with the same crime. The ability of people to exchange money for a lighter sentence is widely considered an injustice. Why, then, should be it right for a person to exchange information for a lighter sentence? Surely, a large donation to charity might do more good for society than paying to have someone serve time behind bars, so why not let the wealthy criminals trade their wealth for their freedom? Similarly, while the state often will often offer rewards for people who provide information leading to the arrest and conviction of wanted criminals, even tough citizens ought to offer this information to the state free of charge, most would object if the state started to offer people money to testify against criminals in trials. While it is a common practice to pay "expert witnesses" to testify at a trial, this too is a practice that's commonly criticized and is not really analogous to paying for non-expert testimony.

Most people in our morally aware country would agree that torture is wrong. Of course, offering people a lighter sentence in exchange for testimony is not the moral equivalent of torturing them. Nonetheless, the problems inherent to using torture to elicit testimony are not unlike those that the affirmative to attribute to plea bargaining in exchange for testimony. Information that victims of torture provide is notoriously suspect. The torture victim will say anything to put the torture to an end. In fact, there's a long history of torture being used to elicit false confessions and information used at trials. A person confronted with long prison sentence could similarly be thought of as having every incentive to lie in order to escape that fate. However, even if the information extracted through torture were reliable, most people would still recognize that the ends in these cases don't justify the means. The affirmative can argue that threatening a person with a harsher sentence than they might otherwise get in order to elicit testimony from them is not that much different from torturing them. The analogy to torture might prove particularly effective for affirmative in those rounds where the negative insists that the ends justify the means. Affirmative will want to press the negative on this point.

  • Cross examination:

The best line of questioning for the affirmative will focus on how plea bargaining in exchange for testimony potentially shifts the delicate balance of the United States criminal justice system away from protecting the innocents towards conviction of the guilty. At the very least, the United States criminal justice system is premised on the claim that all else being equal it would be better to let a guilty person go free than to punish an innocent individual. Whether that necessarily means that it is better than ten or a hundred guilty go free rather than have one innocent person convicted or plead guilty to a crime he or she didn't commit is not so clear.

Con

  • Debate:

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.

  • Cross examination:

Given that plea bargaining for testimony has been practiced for some time now in the United States, the negative should probably ask the affirmative why, if the practice unjust, why it has not resulted either in some quantifiable injustices (e.g. large numbers of innocent people being convicted of crimes they haven't committed) or been subject to negative review by the Supreme Court.


Societal safety/health: Does plea bargaining in exchange for testimony fail to protect society?

Pro

  • Plea bargaining for testimony encourages crime by providing criminals an escape route. Criminals commit more crimes under the assumption that they can have their sentence commuted by ratting out their friends.
  • Attempting to capture a bigger criminal through a plea-bargain-exchange-for-testimony wrongly justifies means by ends - Social ends should not guide the administration of the law. It is not acceptable to sacrifice the due implementation of the law against one criminal in order to convict a worse criminal. This is a classic example of justifying means by ends. The problem is that this leads to a slippery slope of ends justifying means. Should a criminal be set free because he is a genius and may be useful to society? Should torture be justified because it could save more lives than it takes? When social ends justify means, these are the kinds of questions that arise.
  • The innocent are put at greater risk by plea bargaining.
  • Plea bargains give too much unfettered power to the state, which can be harmful.
  • Jury trials educate citizens about self-government. Alexis de Tocqueville actually claimed this once.

Con

  • Plea bargains in exchange testimony help convict the worst criminals and protect society: It allows the court system to put away the most serious offenders by getting testimony that could not be obtained otherwise; who knows more about the workings of crime than those involved in it? Many of these people will not testify unless there is something in it for them. Also, when those who are guilty beyond a doubt are exonerated in front of a jury because correct procedures have not been followed by the police or other agents, a plea bargain may be the only way to convict them and get them off the streets.
  • Plea bargaining lowers the risk of acquittal and freed criminals. Plea bargaining and plea bargaining in exchange for testimony creates a certainty of a conviction. No matter how strong the evidence may appear, an acquittal is always possible as long as a trial is pending. Ordinary plea bargaining as well as plea bargaining in exchange for testimony are both means to this end, which helps protect society.

Due dessert? Does plea bargaining in exchange for testimony violate the notion of due dessert?

Pro

  • Plea bargaining violates the legal notion of due desert: This notion holds that specific crimes and circumstances should lead to or deserve specific punishments. Only when due desert is applied, can it be said that justice is served. Plea bargaining reaches settlements that are not an exacting measure of what a criminal deserves, but simply of what can be satisfactorily agreed upon between the prosecutor and defendant. The punishment falls somewhere in the middle of these parties, instead of on a place of due desert and justice.
  • Upholding justice trumps the benefits of plea bargains - This assumes first that plea bargaining sacrifices in some part justice for the sake of many benefits. It counters this is wrong because maintaining justice trumps all of these benefits.
  • Judges severely punish criminals if they reject plea bargain deals. John Langbein, a professor of law and legal history at Yale says that "Plea bargaining works by threat, and it goes like this: 'Oh, you want to exercise your constitutional right to a jury trial? Please be our guest. But understand that if you exercise that right we will punish you much more severely,' In effect, that means we are punishing you twice. Once for what you did and once for having the temerity to exercise your right to face a jury."
  • Trial by jury provides a means of interjecting community norms and values into judicial proceedings. It legitimizes the law by providing opportunities for citizens to validate criminal statutes in their application to specific trials.
  • A jury is likely to provide a more sympathetic hearing, or a fairer one, to a party who is not part of the government. A plea bargain in exchange for testimony simply misses this opportunity for greater fairness.

Con

  • Plea bargaining in exchange for testimony is the best way to achieve broader justice and desert: The capabilities of the judicial system are limited. It can't try every case, so it can't bring due desert or proportional punishment to everyone. The best alternative, therefore, is to attempt to achieve the highest level of social justice and due desert. Plea bargaining in exchange for testimony makes this possible by allowing all cases to receive due consideration and a bargain that is as fair as possible.
  • Jury trials are not necessarily the most fair or just: In highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather than on conviction beyond reasonable doubt.
  • Judges are not punishing criminals or rejecting plea bargaining deals. They punish criminals for committing crimes- the criminal never had any right to the lesser sentence, so it's not unjust when they are prescribed a punishment fitting the crime they were originally going to be tried for.

Constitution/Due process: Is there inadequate due process in plea bargaining in exchange for testimony?

Pro

  • Justice and due process are at risk if plea bargains are implemented to speed the process: The notion of a "right to a speedy trial" uses the specific word "trial", not plea bargain. It is necessary to speed up the process of trial, but plea bargains are a short-cut that emphasizes speed, without the due process of a trial. Some say that plea bargaining in exchange for testimony helps to generally relieve the court system and speed up the process. But the process should be sped up within the legitimate means of trial. This means that the court system should be improved, supplied with more resources, and generally made more efficient.
  • The extreme prevalence of plea bargaining in exchange for testimony is the problem: While some instances of plea bargaining and plea bargaining in exchange for testimony may be justified, it is the extreme prevalence of these practices that is the problem. 90 percent of all cases are concluded by plea bargaining instead of trial by jury. The prevalence of plea bargains in exchange for testimony is also very high. Given that the constitution calls for trial by jury, it is unjust that there is such a high rate of plea bargaining and plea bargaining in exchange for testimony. At a minimum, measures should be take to reduce the rate of these practices.

Con

  • Trial by jury is not an "inalienable" right: The rights that are claimed to be broken by plea-bargaining-in-exchange-for-testimony are not inalienable. Therefore, by breaking them we are not committing a violation of the Constitution.
  • Plea bargains involve sufficient due process.
  • Plea bargaining speeds up court processes, ensuring the right to a speedy trial: "Giving each their fair due" is a principle that makes it only right to give each defendant their right to a speedy trial (as defined by the 6th Amendment of the US Constitution). Plea bargains are a form or trial and more speedy.
    • By speeding up individual cases, plea bargaining ensures that fewer cases have to be dropped or delayed: This makes the court system run more smoothly, which allows justice (generally acknowledged to be achieved by fair trial) to be more attainable for more people more quickly.
  • Plea bargaining bargaining in exchange for testimony is relatively rare: While 90% of cases might end in a plea bargain, what is the the percentages of those that involved an exchange for testimony? It is important not to confuse all plea bargains with plea bargains that involve an exchange for testimony.
  • Plea bargaining brings finality and conclusiveness to more cases: Concluding a settlement is an important part of justice. Plea bargaining creates a framework wherein the accused and his accusers can reach an agreement which settles the case once and for all, in what is hoped will be a spirit of fairness.
  • Plea bargaining can be an appropriate way to get straight to the punishment: It lets the justice-system skip the 'making them feel sorry for what they've done' and get straight to the 'accepted punishment.' This is important and most appropriate when the defendant has confessed guilt and is not in need of further feelings of remorse through a trial.
  • Plea bargains are the criminal counterpart of the accepted practice of civil settlements. Law and economics both support civil settlements, as should they subsequently support plea bargains.
  • If there is not no real contention of innocence, than a trial by jury becomes merely an exercise, when plea bargaining would suffice. Plea bargaining in exchange for testimony can be defended on this point in the same way as ordinary plea bargaining; it doesn't shirk a responsibility to due process.

Testimony reliability: Is the testimony given in exchange for a plea bargain unreliable?

Pro

  • Offering plea bargains in exchange for testimony creates an incentive for faulty testimony - The government is offering a reduced sentence in exchange for an incriminating testimony against someone else. This creates a clear incentive for an incriminating testimony to be given, even if it is false testimony.
  • Testimony under threat should not be relied upon. This point is premised on the notion that judges generally threaten those that reject plea bargains and seek trial with overly severe punishments. ( Judges severely punish criminals if they reject plea bargain deals| see argument). In this sense a threat exists over criminals, and accepting a plea bargain in exchange fore testimony is one of the only ways to avoid this threat. The same logic is applied in questioning the reliability of information extracted under the threat of torture.
  • Convicted criminals should not be entrusted to provide truthful testimony: Justice depends on truthful testimony. What reason do we have to trust the testimony of a convicted criminal? It is irresponsible for the government to rely so heavily on such testimony.
  • The low reliability of a criminal's testimony reduces the overall value of plea-bargaining-in-exchange for justice: One of the chief arguments for plea bargaining is that it helps put away the worst criminals and protect society. But if we can't rely on the truth of criminal testimony, how can we conclude that it is actually helping put other criminals away. Might it be putting innocent people away or leading to too severe punishments.
  • If criminals do lie on the stand, it is incredibly difficult to convict them for perjury. Thus, they know they can lie and not be punished.

Con

  • The person accepting the plea bargain will be cautious in presenting only the truth: They indeed have their best interests at heart. In accepting a plea bargain, they will tell everything that they know. Telling what they don't actually know and lying would be more incriminating against them. Criminals have good reason to fear that any lies or exaggerations they tell will be revealed. They are not the only ones giving testimony and a body of facts does often exist to corroborate with testimonies. Criminals giving testimony in exchange for plea-bargain, therefore, have good reason to fear that any false testimony they give will contradict other testimonies and the facts, that their plea-bargain-exchange might subsequently be invalidated, and that they might be subject to further penalties as a result of their false testimony.
  • Prosecutors and judges can take steps to reduce the risk of false testimony: Judges and prosecutors need to make criminals fully aware of the punishments that may occur if false testimony is given. Assuming that the penalties are stiff and made clear, the likelihood of false testimony should be small.
  • Those who take plea bargains in exchange for testimony have no incentive to lie, because their plea bargain does not depend on the success or failure of the case they testify in.

Defendant rights: Are defendants' rights violated in plea bargain exchanges for testimony?

Pro

  • Defendants are often pressured into accepting plea bargains: This argument applies plea bargaining in general, but it has cross applications to plea bargaining in exchange for testimony. Judges frequently pressure defendants into a plea bargain in exchange for testimony. This is for many of the reasons presented in the con case, particularly when there is an incentive to convict a "bigger fish" with a testimony. See the examples of this occurring in this argument's page.
    • Plea bargains in exchange for testimony often exploit defendants.
  • Defendants do not have the free right to choose in regard to plea bargaining.
  • Defendants are often making the choice to waive their right to trial without the assistance of counsel.
  • Adverse salaries can cause prosecutors to push for plea bargains. Prosecutors have a career incentive to take more cases through plea bargaining - seeking a plea bargain in exchange for testimony is a way for prosecutors to increase their case load and make more money.

Con

Before a judge can accept a plea bargain recommendation, it must be demonstrated that the person voluntarily and knowingly waived their rights and plead guilty to the charge. Texas courts are actually obligated to document proof of this to ensure the waivers on record reflect a voluntary and knowing waiver of rights.
  • Abuses do not justify banning plea bargaining in exchange for testimony: The abuse of a system does not mean the system is illegal; it could simply mean that measures need to be taken to ensure that individuals are complying with the legal boundaries of the system. Abuses of plea bargaining in exchange for testimony can be countered by fighting these abuses; it is not appropriate to abandon the practice in the face such abuses.
  • Defendants have the right to engage in plea bargain contracts at their discretion.
  • Plea bargaining may be a way out for innocent people who are framed - they can get a lighter sentence than they would standing in front of a jury.
  • Resolving a case quickly by plea bargaining relieves undue stress to the defendant. While an argument of plea bargaining in general, this can also be cited as an added defense of plea bargaining in exchange for testimony.

Court strains: Is plea bargaining in exchange for testimony a bad way to reduce judicial strains?

Pro

  • If the court system is strained, we should improve the court systems: Justice is a bedrock principal of democracy. It should trump in importance almost any other consideration for government expenditures. If plea bargains in any way impinge on justice, this is a fundamental problem that requires major government resource changes. Since a justification for plea bargaining is poorly resourced judicial systems, a solution would be to increase federal and state judicial funding and prioritization in budgets. A poorly resourced judicial system is not a justification for sacrificing justice (if that's what is happening). Providing the requisite resources through taxes or spending cuts on lower priority programs would be the better course of action.

Con

  • Plea bargains are a necessary way to relieve strains on over-crowded prisons. The US prison system is notoriously strained. Plea bargains and plea-bargains-in-exchange-for-testimony are a way for the judicial system to reduce the sentencing periods of criminals, thus reducing the strains on the prison system.

Victims: Is plea bargaining in exchange for testimony fair to victims?

Pro

  • Plea bargaining in exchange for testimony harms victims that desire justice: What about the victims of a crime who expect that their assailant be punished proportionally to the crime, but then see them receive a lesser sentence in a plea bargain exchange for testimony? Many argue that these victims do not receive redress in such a circumstance and that they are, subsequently, damaged by plea bargaining in exchange for testimony.

Con

  • Plea bargaining can relieve victims of the burden of testimony: Plea bargaining also allows prosecutors to settle cases without forcing a victim to endure a lengthy court process or have to testify in a jury trial. This can be particularly important in cases involving fragile witnesses or victims (young children in sexual abuse cases, elderly people who have been victimized by relatives, seriously ill people and others).
  • Victims do not have a "right" to see the person punished.
  • The crime may not have a victim [i.e. drunk driving, possession of drugs, illegal possession of a firearm, etc.].

Bribe? - Is plea bargaining for testimony similar to bribery?

Pro

  • Plea bargaining in exchange for testimony is similar to bribery. Offering plea bargain for a testimony is similar to entrapment, which is illegal: In entrapment, a police officer may withhold capturing and subsequently punishing a criminal in exchange for concessions from that criminal, usually in the form of money. This is widely considered corrupt and illegal. In asking for a testimony from a criminal in exchange for a plea bargain and reduced sentence, a similar thing is happening; officials are withholding punishment (even if only partially) in exchange for a concession from a criminal (an incriminating testimony). The similarities here are strong enough to ask why one is illegal and the other common practice?
  • Defendants to not have a legal basis for selling their rights.

Con

  • Valuable social purpose. Plea bargaining in exchange for testimony is not similar to entrapment as it has a valuable social purpose: It is used to achieve valuable testimony that could put serious offenders away before they can cause more harm to society.

The poor: Is plea bargaining in exchange for testimony unfair to the poor?

Pro

  • Plea bargaining is too dependent on the quality of lawyers at a cost to poor dependents: A plea bargain does not involve as exhaustive a study of the facts of a case, and no testimonies. Its outcome, therefore, is dependent largely on the persuasiveness and demeanor of a lawyer performing the negotiations. This creates an inherent disadvantage for poor defendants who cannot afford higher quality lawyers.

Con

  • No impact of unjust plea bargaining. Even if plea bargaining is unjust to the poor because they may have inadequate representation, it doesn't matter- inadequate representation shows through at trial as well as in plea bargain negotiations. Generally, the prosecution has a responsibility to share evidence gathered with the defense.

Immigrants: Are there negative consequences for immigrants?

Pro

  • Plea bargains may carry unintended ramifications such as deportations: In some situations, notably where resident aliens are defendants in the United States, pleading guilty to a felony in a plea bargain should result in the criminal being deported. Because a state judge has no influence over immigration decisions by the federal government, a resident alien charged with a crime may take a plea bargain, plead guilty, and consequently be deported by the federal government for committing a "crime of moral turpitude." Such unintended or unforeseen effects of either a plea bargain or conviction at trial are sometimes called the collateral consequences of criminal charges.

Con

  • Immigrants should be made aware by their lawyers and judges of the potential consequences of plea bargains: The problem being identified here is with the immigration system and not with plea bargaining.

Economics: Are economic considerations insignificant or unfounded?

Pro

  • Justice should not be affected by economics or other expediencies: Just because something saves money does not relate to it being just/unjust.
  • Fair trials are more important than economic considerations. Is it not just for a government to expend all necessary resources to ensure that there are no wrongful convictions or acquittals?

Con

  • Plea bargaining reduces enforcement costs by shortening lengthy trials. The money that would have been expended in the trial can be used justly for good causes.

Pro/con sources - The main pro/con cases

Pro

  • Pakistan
  • Cahill, Michael T, and Robinson, Paul H. Law Without Justice, How Criminal Law Doesn’t Give People What They Are Due.
  • Halberstam, Malvina. “Towards Neutral Principles in the Administration of Criminal Justice: A Critique of Supreme Court Decisions Sanctioning the Plea Bargaining Process.” The Journal of Criminal Law and Criminology Vol. 73, No. 1. (Spring, 1982), pp. 1-49.
  • Langbein, John H. “Land without Plea Bargaining: How the Germans Do It” Michigan Law Review, Vol. 78, No. 2. (Dec., 1979), pp. 204-225.
  • Maic, Steve. "The morality of copping a plea. Plea bargains have become central to our legal system -- but are they ethical?". Macleans.Ca. July 9, 2007
  • Lynch, Timothy. "The Case Against Plea Bargaining". Cato Institute. Fall 2003
  • Roberts, Paul Craig and Lawrence Stratton. "The Tyranny of Good Intentions. New York, N.Y.: Prima Publishing, 2000.
  • Vogel, Mary E. Plea Bargaining, the Courts, and the Making of Political Authority. Oxford University Press, 2007. Vogel posits that plea bargaining has allowed for the state to dominate the judicial system in an unjust fashion.
  • Welch, Michael. Corrections: A Critical Approach McGraw-Hill, 2003. - Argues that plea bargaining encourages crime by providing an escape route for criminals through the ratting our of friends.

Con

  • Israel, Jerold H. King, Nancy J, LaFave, Wayne R. Principles Of Criminal Procedure: Post Investigation Concise Hornbook: Discusses the principles of criminal law underpinning the US criminal justice system, and defends the practice of plea bargaining on the basis of limited state resources and a backed up judicial system.
  • Madinger, John. Confidential Informant: Law Enforcements Most Valuable Tool. CRC Press, 1999. The book discussed how many criminals are caught through plea bargaining in exchange for testimony and argues that this help protects society.
  • Purpura, Phillip. Criminal Justice: An Introduction: Book defends plea bargaining on the basis that it saves state resources.

See also

Further reading

  • Encyclopedia of Everyday Law on plea bargaining
  • North Carolina v. Alford, 400 U.S. 25 (1970), perhaps the most important Supreme Court decision regarding plea bargaining.
  • In the United States, plea bargaining in exchange for testimony is unjust. National Forensic League Overview.
  • Jack Abramoff case, "Lobbyist Is Said to Discuss Plea and Testimony". New York Times. ANNE E. KORNBLUT. December 21, 2005
  • Dirk Olin, and IDEA board members, gives a brief history of plea bargaining, which offers some interesting examples.
  • Frontline: argument that plea bargaining violates the right of trial by jury. Extracted from From Harvard Journal of Law and Public Policy, Volume 15, Number 1, Winter 1992, pages 119-127.
  • Alschuler, Albert W. “Plea Bargaining and Its History.” Columbia Law Review, Vol. 79, No. 1. (Jan., 1979), pp. 1-43.
  • Ashworth, Andrew. Sentencing and Criminal Justice (Law in Context)
  • Buckle, Suzann R. Thomas. Bargaining for Justice: case disposition and reform in the criminal courts. New York: Praeger, 1977.
  • Cahill, Michael T, and Robinson, Paul H. Law Without Justice, How Criminal Law Doesn’t Give People What They Are Due.
  • “The Federal Witness Immunity Acts in Theory and Practice: Treading the Constitutional Tightrope.” The Yale Law Journal, Vol. 72, No. 8. (Jul., 1963), pp. 1568-1612.
  • Marcowitz, Joseph C. Plea Bargaining: An Annotated Bibliography. American Judicature Society, 1978.
  • Miller, Herbert S, et. al. Plea Bargaining in the United States. National Institute of Law Enforcement and Criminal Justice; Washington, D.C: 1978. Comprehensive report on plea bargaining with statistics, views from both sides and definitions.
  • Standen, Jeffrey. "Plea Bargaining in the Shadow of the Guidelines." California Law Review, Vol. 81, No. 6. (Dec., 1993), pp. 1471-1538.
  • United States vs. Lee 1846[5] - a critical decision to plea bargaining that formalized the state's role to informants.
  • Wolfson, Warren D. “Immunity: How It Works in Real Life” The Journal of Criminal Law and Criminology (1973-), Vol. 67, No. 2. (Jun., 1976), pp. 167-180.

External links and resources


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