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The dominance of plea bargaining and the lack of transparency throughout the justice system should be addressed with \u201clegal safeguards\u201d to protect defendants, argues a forthcoming paper in the Stetson Law Review<\/em>.<\/a><\/p>\n \u201cThe main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the\u00a0criminal\u00a0justice\u00a0system,\u201d write the paper\u2019s authors, Anna D. Vaynman <\/strong>and Mark Robert Fondacaro <\/strong>of the John Jay College of Criminal Justice.<\/p>\n The authors acknowledge that prosecutorial discretion is a potentially valuable tool, but they are quick to note that it creates the \u201cpotential for abuse.\u201d<\/p>\n That abuse often begins with plea bargains, write the authors, adding \u201cAre they really bargains?\u201d<\/p>\n Some argue that they are not, noting that in 2018, more than 97 percent of federal criminal convictions are obtained through plea bargains, and the states are not far behind at 94 percent, according to the Pew Research Center.<\/a><\/p>\n The guilt of those defendants is far from certain, the paper says \u2014 especially when so much pressure is exerted on them to avoid a trial where they are told they will risk a longer sentence if they are convicted.<\/p>\n With few safeguards and little oversight, the pressure is coupled with \u201covercharging, exploding offers, dismissing charges, charge stacking\u201d and other tactics that invariably shift the balance to the prosecutor.<\/p>\n The discussion surrounding prosecutorial discretion could benefit from \u201cnuance and precision,\u201d says the paper.<\/p>\n \u2018Prosecutorial discretion is not inherently negative or one-sided,\u201d the paper asserts.<\/p>\n The core purpose of a trial should be to resolve conflict in a way that \u201cstrikes a balance between truth-seeking, fairness, and the promotion of social stability, \u201d yet, in a courtroom setting where one part has unique power, \u201clegitimacy is jeopardized,\u201d the authors detail.<\/p>\n Reforming a process that has been \u201cdeeply ingrained\u201d in U.S. legal culture is difficult, but not impossible, write the authors.<\/p>\n The paper\u2019s primary recommendation is to take plea bargaining \u201cout of the shadows.\u201d<\/p>\n Vaynman and Rondacaro argue that better documentation of plea bargains will help with the court\u2019s oversight, and reintroduce the \u201cbalance of power that leads to justice\u201d particularly around patterns of potentially biased practices in plea negotiations involving prosecutors.<\/p>\n The authors also suggest stricter requirements for the discovery process.<\/p>\n Currently, because of United States v. Ruiz<\/em><\/a>, <\/em>prosecutors are not obligated to turn over material prior to entering into a plea deal with a defendant, meaning that defendants and their attorneys are \u201cflying blind\u201d and are unable to take into consideration evidence the prosecution may or may not have when entering into a deal.<\/p>\n Other recommendations include:<\/p>\n The researchers say that the above suggestions are by no means exhaustive, but offer them as a starting point for a wider discussion about the strengths and weaknesses of current prosecutorial discretion.<\/p>\n \u201cA system does not garner trust because it is powerful; a system is trusted because it subjects itself to the judgment and scrutiny of others,\u201d the authors conclude.<\/p>\n \u201cIt behooves the legal system to give prosecutors the opportunity to subject themselves to this discerning judgment in a structured, systematic, and informed way.\u201d<\/p>\n Anna D. Vaynman<\/strong> is a Ph.D. student in the Psychology & Law program at John Jay College. As a doctoral student, Anna studies plea bargaining behaviors and motivations, with a particular interest in the role of attorneys throughout the plea process.\u00a0She graduated Barnard College in 2016 with a Bachelor\u2019s in Psychology<\/p>\n \u00a0<\/strong>Mark Robert Fondacaro <\/strong>is currently a Professor of Psychology and Director of the Doctoral Training Program in Psychology & Law at John Jay College of Criminal Justice and the Graduate Center, CUNY. Over the past 10 years, Professor Fondacaro has helped to develop and implement training programs for the NYPD on managing situations involving emotionally disturbed persons including scenario-based training.<\/p>\n Additional Reading: Duke Researchers Pry Open the \u2018Black Box\u2019 of Plea Bargaining<\/a>, The Crime Report, Dec. 9, 2021.<\/em><\/strong><\/p>\n The full paper, entitled \u201cProsecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System,\u201d is available for download here<\/a>.<\/p>\nThe \u2018Importance of Balance\u2019<\/strong><\/h4>\n
Recommendations for \u2018Regaining Balance\u2019<\/strong><\/h4>\n
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