Public Defense & Plea Bargains

What are the 5 purposes behind criminal punishment?

1) Retribution

2) Deterrence against crime

3) Prevention of harm to society/Incapacitation

4) Rehabilitation/Reform

5) Restitution

Expand on Retribution (2)

1) “eye for an eye; a tooth for a tooth”

2) Proportionality a critical component of this concept

Expand on Deterrence against a crime (2)

1) Specific Deterrence

2) General Deterrence

Expand on Restitution

Restorative Justice - newly evolving concept in US criminal justice

According to Retribution theory, punishment is justified simply as a matter of…

giving the wrongdoer what they deserve (if you harm someone, you deserve to be harmed back)

According to Deterrence theory, punishment is justified because it…

prevents people from doing bad things in the future and has good consequences (protects society & serves as a warning to both wrongdoer and anyone else who might be thinking doing the same kind of behavior)

According to Rehabilitation theory, punishment is justified because…

it reforms the wrongdoer and transforms the wrongdoer into a more productive member of society

What does this example describe: If a kid steals a cookie and you slap his hand and hope it deters him from stealing cookies in the future and you hope other kids see the hand slap and are also deterred from stealing cookies.

Deterrence

What does this example describe: If your kid steals a cookie, you send him to his room and as long as he is in his room, he’s incapacitated and not going to be stealing any more cookies.

Incapacitation

What does this example describe: Your kid steals a cookie and you have a long talk about why stealing is wrong and you help him make a new batch of cookies to replace what he stole. You hope this improves his ability to self-regulate his cookie habits.

Rehabilitation

What does this example describe: Your kid steals a cookie, and even though he says sorry he won’t do it again, you take away his screen time for the day because bad actions deserve a proportionate bad response.

Retribution

Define Specific Deterrence

If we punish an individual person for committing some crime they will be less likely to commit that crime in the future

Define General Deterrence

Society punishes an individual for committing some crime in order to teach everybody else that they shouldn’t commit that crime

Define Incapacitation

Society takes people out of citizenship so they can’t commit more crimes

Define Retribution

Moral judgement of punishing someone because they deserve it (proportionate)

Define Rehabilitation

Society punishes people so that they can learn to fix themselves and realize that what they did was wrong and then work towards making themselves a better citizen and then when they get finished with punishment, they come back and be a batter citizen

Define Restitution

Individual will pay back to society for crime they committed/goods they stole/etc

Which amendment was Gideon v. Wainwright focused on and what did it highlight? (2)

1) 6th amendment

2) Indigent defendants have the right to court appointed counsel (applies in felony criminal proceedings)

6th amendment was extended to Non-Felony Prosecutions through what 2 cases? (2)

1) Argersinger v. Hamlin

2) Scott v. Illinois

6th amendment was extended to Juveniles through what case?

re Gault v. Arizona

Describe the two Nightmare of Fort Grant (in re Gault) (2)

1) Grand Theft - $60

~ Curtis Uptain (5th grade, age 11) - “indeterminate sentence”

~ Jerry Gault (8th grade, age 14) - 6 months probation

2) Lewd Phone Call

~ Ronnie Lewis & Jerry Gault - “indeterminate sentence”

~ If adults… 60 days & $50 fine

~ No lawyer, no court records, no appeals

Ernesto Miranda and Jerry Gault committed to…

Fort Grant in 1956 and 1964

Define Pre-Trial Diversion Programs

An alternative to prosecution (intended to divert offenders into programs for assistance rather than punishment)

Pre-Trial Diversion Programs can happen if… (3)

1) 1st time offense

2) Prosecution agrees

3) Offender agrees to whatever program (i.e. rehab, AA meetings, community service, etc.)

6th Amendment applies to __ criminal prosecutions, thus coined the “_____” Test: Mempa v. Rhay

all; Critical Stages

Define Indigents (3)

1) Those who are too poor to pay for an attorney and are entitled to have one provided for them for free

2) ¾ of state prison inmates have a court-appointed lawyer

3) In urban courthouses, 80% of felony defendants are too poor to hire their own lawyer

It is up to counties to determine what type of system they will utilize. True or False?

True

What are the 3 systems of providing indigent defense? (3)

1) Assigned Counsel

2) Contract System

3) Public Defender

Describe Assigned Counsel (2)

1) Attorneys APPOINTED by the judge on a case-by-case basis

2) Most common in small counties

What are 2 criticisms of Assigned Counsel? (2)

1) Least qualified attorneys

2) Inadequate pay

Describe Contract System (2)

1) Attorneys HIRED to provide services for a specified fee

2) Most common in small counties

What are 2 criticisms of Contract System? (2)

1) Lower standard of representation due to bidding

2) Found unconstitutional in Arizona

Describe Public Defender (3)

1) SALARIED public official representing all indigent defendants

2) Funding occurs at state or local level (taxes)

3) Representants about 70% of all indigents nationwide

What are 3 proponents of Public Defender? (3)

1) Devote more attention to clients

2) More experienced, competent counsel

3) Continuity and consistency

Describe Ineffective Counsel (3)

1) Objective Standard of Reasonableness: Strickland v. Washington

2) Appellate courts must reverse if proceedings were unfair and the outcome would have been different if counsel had not been ineffective

3) Few appellate court reversals on these grounds

Describe Self-Representation (2)

1) Defendants have 6th Amendment right to self representation - Pro se (“for oneself”)

2) Faretta v. California

What are 2 limitations with self-representation? (2)

1) Must show the judge the ability to conduct the trial

2) Standby counsel (lawyer who assists w/self-rep) is available during the trial

The only crime where more than 10% of cases actually goes to trial is ____.

murder

Plea agreements come down to 3 basic forms: (3)

1) Charge Bargaining

2) Count Bargaining

3) Sentence Bargaining

Define Charge Bargaining (2)

1) In exchange for a guilty plea, state will allow for defendant to plead guilty to a lesser charge than the original one filed

2) This type of bargain tends to happen in jurisdictions where legal code is very rigid or prosecutor tends to over charge to begin with

Define Count Bargaining (2)

1) In exchange for a guilty plea to one or more counts of a particular crime, the state will dismiss all remaining charges

2) This in theory reduces defendant’s jail time because they would serve one sentence for the crime instead of sentences for say 3 crimes

Define Sentence Bargaining (2)

1) A guilty plea is entered in exchange for a more lenient sentence

2) In this, the defendant usually pleads to the original crime (called a “plea on the nose”), the defendant will receive less than the maximum

Describe role of Prosecutors (4)

1) Plea bargains aid the prosecution because it is a guaranteed conviction

2) Control negotiation process

3) A tool used to strengthen an already strong position for the prosecution is over charging

4) This allows for prosecutor’s office to reduce charge/sentence/etc and still get a conviction that they would have gotten in trial

Describe role of Defense Attorneys (4)

1) Have very few bargaining chips during plea negotiations

2) There are 3 things that go into plea agreements for defense attorneys

~ They weigh cost of going through trial against outcome

~ They then try and negotiate the best terms possible

~ And lastly they counsel defendant, who may or may not want to take the deal

Describe role of Defendants (3)

1) Most are poor, uneducated, and depend on their attorney for guidance

2) Basically, pleading guilty benefits the defendant w/a more lenient sentence

3) Defendants do not have to take a plea agreement and may choose to go to trial

Describe role of Judges (3)

1) Judges are limited in their role during plea negotiations

2) Know little about case, they don’t want to intrude on prosecutor’s discretion, and they don’t control the charges filed

3) Very rare for judge to reject plea bargain that has been offered by prosecution

A plea of guilty is not only an ______, but a conviction where the defendant waives most of the ______ provided for criminal trials by the bill of rights.

admission of conduct; vital rights

A plea of “_____” carries the same weight as guilty in criminal proceedings, but can’t be used against _____ in ____ cases.

nolo contendere; defendant; civil

For pleas to be admissible and in good standing w/court, it must be ____ that the plea was made ______ and _____. The judge will ask the ____ directly if they understand the charges and possible penalties.

affirmed; voluntarily; intelligently; defendant

There was a time when judge merely would accept the attorney’s word that defendant wanted to plead, but that changed in _______. Now, the _____ is used to affirm the defendant wants to enter the plea being stated by their attorney.

Boykin v. Alabama; Boykin form

Define Plea Bargaining

Granting certain concessions to the defendant in exchange for a plea of guilty to a less serious charge or a recommendation of a lighter sentence on the original charge in exchange for a guilty plea

What is the role of Defense Attorney in plea bargaining?

They consult with their clients and agree only to what the clients want

What must a judge do when accepting a plea?

They decide whether the plea was freely, voluntarily, and with knowledge of all the facts

A judge does not have the power to reject a plea. True or False?

False

A plea bargain is a ____ between prosecutor and the defendant.

contract

What are 3 pros to Plea Deal? (3)

1) Plea bargains quicken the legal process, reducing court crowding and allowing for quicker resolution

2) Defendants may receive reduced charges/sentences compared to what they might face at trial

3) Plea bargaining can save defendants money on legal fees and avoid financial burden of trial

What are 3 cons to Plea Deal? (3)

1) Defendants waive their right to a trial, including the right to confront witnesses and present a defense

2) Defendants may feel pressured to plead guilty, even if they are not fully guilty, due to threat of harsher sentences if they go to trial

3) Plea bargaining can be seen as a compromise of justice, as it may not reflect the true severity of crime or full extent of defendant’s responsibility of wrongdoing

This theory is based on the idea that people should pay for what they did - “an eye for an eye, tooth for a tooth”

Retribution

This goal of punishment tries to stop a previously punished person from committing another crime.

Specific Deterrence

This approach imprisons offenders away from society to prevent more harm.

Incapacitation

This type of punishment focuses on helping people improve and return to society.

Rehabilitation

This method works to repair the harm done and resolution of issues arising from a crime, bringing together the victim, offender, and community.

Restorative Justice

This SCOTUS case gave poor people the right to a free lawyer in felony cases.

Gideon v. Wainwright

A person who cannot afford a lawyer is called this.

Indigent Defendant

This test is used to decide if a lawyer is required during certain steps of a criminal case.

“Critical Stages” Test

This term is used when someone defends themselves in court w/o lawyer.

Pro-se

This case created the rules for showing that ineffective counsel resulted in an unfair outcome for criminal defendant’s case.

Strickland v. Washington

Most criminal cases are resolved this way, not through trials.

Plea bargain

In this kind of plea deal, the person pleads guilty to a less serious charge.

Charge Bargaining

In this deal, the person pleads guilty to one charge and other charges are dropped.

Count Bargaining

This deal involves pleading guilty in return for a lighter sentence.

Sentence Bargaining

This case requires judges to make sure the defendant understands the guilty plea.

Boykin v. Alabama

The government-paid lawyers defend people who can’t afford a private attorney.

Public defenders

In this system, judges pick a lawyer for an indigent defendant.

Assigned Counsel

This system hires lawyers for a set fee but was ruled unconstitutional in some states.

Contract System

About this percentage of felony defendants in cities can’t afford their own lawyer.

80%

Public defenders handle about this percent of all indigent criminal cases.

70%

This lawyer works to protect the right of someone accused of a crime.

Defense attorney

This lawyer represents the government and tries to prove guilt and seek punishment.

Prosecutor

This official makes sure the plea deal is fair and that rights are protected.

Judge

This prosecution strategy pressures people into plea deals by threatening harsher charges.

Overcharging

This person often has the least control over what happens in a plea deal.

Defendant

Critics say plea deals let these kinds of criminals get off w/easier punishments.

Dangerous or violent offenders

These people often feel left out of the plea bargain process.

Victims

These overworked lawyers may not have enough time to negotiate strong deals.

Public defenders

If the prosecution breaks the agreement, the defendant may request the judge to do this.

Reinstate the plea bargain

Supporters of plea deals say removing plea bargains would do this to the court system.

Overwhelm it with too many trials