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Overview

This was the November-December, 2007, NFL Lincoln-Douglas Debate topic.

Definitions

In the United States

One can't help but wonder why this phrase was included in the topic. 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.

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.

Plea Bargaining

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.

Testimony

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 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.

Unjust

Quite simply, unjust can be thought of as "not just." We then have to look to the definition of what is just. The most basic definition of justice is 'giving each his fair due.' Going by that definition, something unjust would be to give a person more or less than what he deserves. (to be continued...)

The problem with going with the conventional definition of "giving each their fair due" is that it doesn't answer the question of where the just or unjust impact is. Is plea bargaining unjust to the general population? To the defendent? To other individuals waiting to be tried? On the other hand, this definition may be helpful on the Affirmative. If the Affirmative can prove that plea barganing is unjust in just one way then they can win the round, since the word "each" is part of the definition. Although the Negative does not actually have the burden of maintaining that plea bargaining is just, it may be beneficial to consider other definitions of justice. The American Heritage Dictionary offers several more court oriented definitions of justice, and Black's Law probably does too, but it's $70.

Values and Criteria

Affirmative Overview

Negative Overview

Justice: Does plea bargaining for testimony sacrifice the balance of justice?

Yes

• 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 to entrapment; officials are withholding punishment (even if just in part) 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?

No

Pressure: Are defendants pressured into plea bargains unfairly?

Yes

• Innocent people often agree to plea guilty in order to get a plea bargain

No

• Judges take measures to ensure defendants are not pressured to enter into false plea bargains

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

Yes

• 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.

No

• The poor can obtain sufficient public representation to defend their interests in plea bargains

Is plea bargaining inherently unjust?

Yes

• 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.

• Plea bargain puts pressure on defendants to plead to crimes that they know they did not commit:

• Plea bargaining can encourage prosecutors to overcharge at the start of a case which leads to caseload pressures or unusually severe penalties: One claimed example is young murderer Lionel Tate who received a lengthy sentence for killing a young girl.

• 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.

No

• Plea bargaining is a good way to achieve greater justice through a testimony: In some cases, a defendant may be culpable in one criminal matter, but have information that would help in prosecuting a broader or more significant matter. In such a case, prosecutors may agree to reduced charges or sentencing in the first matter, in exchange for the defendant's cooperation (e.g. testimony) in prosecuting the larger matter.

• 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).
• Plea bargaining may be a good middle ground for the prosecutor and defendant: In still other cases, prosecutors may be certain of the guilt of the defendant in a matter, but the admissible or available evidence might not be enough to convince a jury of the defendant's guilt. This could be the result of a witness or victim dying prior to trial or certain evidence being lost or ruled inadmissible. In those situations it can be of benefit to both the prosecutor and the defendant to arrange a plea bargain; the prosecutor avoids the chance that the defendant could be found not guilty and the defendant avoids the chance that he or she could be found guilty of more serious charges or given a heavier punishment.
• 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).
• By speeding up individual cases, pleabargaining 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 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 a necessary way to relieve strains on an over-strained justice system
• Plea bargains are a necessary way to relieve strains on over-crowded prisons

Economics:

Yes

• Justice should not be affected by economics or other expediencies: Just because something saves money does not relate to it being just/unjust.

No

• Plea bargaining reduces costs by reducing lengthy trials.

References:

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