Justice by mathematics – sentencing in the shadow of harsh penalties

September 26, 2011 at 10:21 pm Leave a comment

The New York Times published an article which details how toughened sentencing rules and practices allow prosecutors to coerce defendants in precarious guilty pleas. As a result of the increasing prosecutorial power less and less felony cases go to trial. Instead, they are settled between the risk of tough sentencing and assessment of chances of fair or unfair outcome from a jury trial. The article aledges that one in 40 felony cases reaches a court room. The rest are solved through plea bargaining between parties with unbalanced power. Prosecutors are strivig for resources and use the opportunity to pursue aggresively their targets.

Many guilty defendants benefit from plea bargaining and get less punishment than what they would have gotten in trial. But those who are innocent are massive pressed to accept the offer or to risk the unpredictable risk to reeceive disproportionally high sentencing. “…many defendants who opt for trial effectively face more prison time for rejecting a plea than for committing the alleged crime.” As one lawyer has put it, defendants who reject plea bargaining are “plainly being punished for exercising [their] right to trial”.

Furthermore, the power disbalances are aggravated by inequality of arms. “The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.” According to legal professor Paul Cassel the increased power of prosecutors is at the expense of the decreasing authorities of the judges. Particularly, the ability of the judge to influence the outcome of a criminal case is now shifted towards the process in which the prosecutor bargains with the defendant.


Read the NYT article Sentencing Shift Gives New Leverage to Prosecutors here


Entry filed under: Uncategorized.

Fourth Access To Justice meeting Sept. 26 in Wheeling, West Virginia Courts, competition and innovation – inaugural lecture by prof. Maurits Barendrecht

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