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Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization

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Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization by Deirdre M. Bowen

People have long debated whether plea bargaining is the best way to handle felony cases in the justice system. This article focuses on a reformed, institutionalized way to plea bargain. The author researches the King County Prosecutors rationalized approach to the way the Early Plea Unit handles their cases.

Ms. Bowen states in her article that all authors reviewed agree that, “plea bargaining under an imbalanced system does not achieve justice, much less arrive at something that resembles empirical or legal truth, institutionalized plea bargaining best resembles the criminal justice system’s desire to create efficiency, calculability, predictability, and control in the processing of defendants, and that reform should work to balance the power between the prosecutors and defense team.” (Bowen) Each reviewed author had a little different way to achieve that balance. Uviller (2004) thinks that the system should resemble at factory type approach. The first stage is the charging stage. The case enters the system and is reviewed for the most obvious, easy to prove, and reasonable charges. It then would move to the adjudication. In this stage the negotiating attorney would attempt to make a deal with defendant in order to get a guilty plea. If a deal cannot be reached, the case would then be transferred to the trial team in preparation for a trial. Bibas (2004c) proposes that best way to reform plea bargaining would be to create a balanced system that increases the power of the defense team without taking power from the prosecutor. He also argues that the reform process should not create alternative systems or completely eliminate plea bargaining. Wright and Miller (2002) suggested and proved that more emphasis should be placed on case screening with the idea that it would reduce the need for plea bargaining. More resources are placed on the case in the very beginning and a more thorough job could be done in finding the charges that are easy to prove. This approach would seems to reduce the need for plea bargaining.

The author zeros in on two questions in this article. The first question is whether and how attorneys create a balance of power in the pursuit of justice. The second question is whether attorneys behave differently under a new, highly rationalized model of plea bargaining compared to the models studied thirty years ago.

The King County Prosecutors Office formed the Early Plea Unit with the clear goal to “protect the process.” They get the nondrug, nonviolent mostly class c and some class b felonies. Another goal is to speed up the system that took an average of 8 to 10 weeks to process cases and make it 30 to 45 days. Cases are first assigned to a senior prosecutor that decides whether to send it through the EPU or sent it straight to trial. If it is decided that it should go through the EPU, the case is assigned to less experienced junior deputy prosecutors. The prosecutor’s office has easy follow, specific guidelines on the rules used in filing charges and disposing cases. The guidelines say that the charging attorney should only charge the defendant with what can be easily and “reasonably” proven. In doing so, the junior prosecutor gives his supervisor a great starting point with plea negotiations. The case then gets transferred one main plea negotiating attorney. He or she is the only prosecutor that can make plea agreements.

This system takes the emotion out of dealing with the cases. If the prosecutors know that they would have to try the case in court, they may be willing to give a little extra for negotiations in order to avoid court. Unfortunately, the King County Prosecutors office allows for a trial penalty. If the accused person rejects the plea deal then the prosecutor is free to add enhancements or additional charges.

Two key rules exist in the trial phase. The first is that the prosecutor is not allowed to offer a deal to the defendant that is better than the one offered in the EPU. Also, if the case skips the EPU, negotiations are prohibited. The problem with these rules was that second rule was clearly being violated. One attorney that was interviewed said that he was pushing to get all of his cases pushed directly to trial for two reasons. The first reason was that he didn’t have to waste his time in the EPU. The other was that the trail team would not be hampered by the first rule. His case went through the EPU and the plea deals were documented, the trial would be limited as to what they could offer.

One negotiating attorney to make plea arrangements with approximately fifty defense attorneys would lend to greatly increased wait times with this system. There would be an obvious bottle neck at this stage that would not only put pressure on the defense teams, but also on the prosecuting attorney. According to the article, continuances are a common occurrence. A continuance puts the defense in a bind by delaying negotiations and possible plea deals. We must remember that the defendant is the loser in the delay especially if he is sitting in jail waiting on the “process” to get out. Also, if the negotiating attorney is out of the office the defense has effectively lost another day. They don’t want the headache that comes with the unpredictability of dealing with a substitute.

The conclusion reached in this article is that too much power is given to the prosecutors in this system. There is no balance and therefore, not neutrality. The prosecutor holds all of the power. Even though seventy percent of the cases did achieve efficiency, it is not clear if justice was served. The behaviors of the attorneys in this system mirrored the behaviors of attorneys in the conventional system. Bowen suggests more resources should be available to the EPU. A few more negotiating attorneys would speed the system and reduce continuances. Also, she suggests that more neutrality should be introduced to the system. Creating a unit within the EPU for the defense side would aid in achieving this goal. They would be able to remove themselves emotionally from the process as well. The power of the trial penalty should be removed from the prosecutor. The promise of the lower end of the sentence should be enough of an influence to persuade defendant to plead early. If not, move it straight to the trial phase.

At the end of this article, Bowen asks two questions: (1) How does the uneven balance of power favoring prosecutors result in a defendant’s opportunity to attain a just plea negotiation? The ability to get a fair plea is greatly influenced by the balance of power. If the prosecutor holds all of the power, he or she can manipulate the plea bargain and the defendant can either take it, or roll the dice in court. (2) What changes to the system do you think would lead to a more equal balance of power? I think that removing the trial penalty would be a great start. If the prosecutor walked in and said, “This is your charge. Plead guilty and we will recommend the lowest possible sentence. If not, we will hammer you with the maximum allowable.” At that point, the defendant could legitimately decide if it was worth the fight. If they start adding crappy secondary charges that have no real business in the case, the added pressure is unfair to the “innocent.” The King County Prosecutors Office is tipping the “fair and balanced” scale too much and creating unfair leverage.

Works Cited
Bowen, Deirdre M. "Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization." Copes, Heith and Mark R. Pogrebin. Voices from Criminal Justice. New York: Routledge, 2012. 160 - 178.…...

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