Essay: The plea bargain

America has the system of common law, this includes that the courts base their decisions on prior judicial pronouncements rather than on legislative enactment. The judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. And in the American common law system there is the phenomenon of the plea bargain.

”Plea bargaining is generally understood as an informal negotiation carried out by the defence counsel and prosecution (sometimes including the judge) where the defendant is offered a reduced sentence in return for a guilty plea, i.e. the waiver of the right to a full trail”.

There are three main forms of plea bargaining. First the so called ‘charge bargaining’, in this case the prosecution offers to drops certain charges if the defendant pleads guilty to the remaining charges. This is probably the most well-known form of the plea bargain. Secondly is the ‘fact bargaining’, here the prosecutor, in exchange for a guilty plea, promises to present the facts of the case in court in a way beneficial to the defendant. Third and final is the ‘sentence bargaining’ it’s the only form of plea bargaining that directly involves the judge. In this sentence canvassing, the defence counsel speaks to the judge to find out how much discount is to be expected in the event of a guilty plea compared to the contested trail.

Despite the fact that a number of criminal justice systems are still working without plea bargaining or similar informal settlements, it is widely assumes that plea bargaining is inevitable in America.

The plea bargain was first introduced in 1970 in the case of Brady v. United States . Defendant Robert Brady plead guilty to kidnapping in order to avoid the dead penalty. The Supreme Court established that his plea was valid because of his option to refuse the offer of the prosecutor.

In 1971 the legality of the plea bargain was challenged again in the case of Santo Bello v. New York . The prosecutor was accused by the defendant because of the fact that he breached their agreement. The prosecutor recommended a more severe punishment than what they specified in the term of the plea bargain. The Supreme Court ruled that in order for a plea bargain to be legally valid, both the prosecutor and the defendant must comply with the term of the agreement.

As a result of this case, all plea bargains must now be approved by a judge in order for them to be considered legally binding.


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