More than 90% of convictions come from
negotiated pleas, Plea Bargains
which means less than 10% of criminal cases end up in trials. Proposition 8?
In 1982, California voters passed Proposition 8. It banned plea bargaining when the “information” (the document that formally charges a defendant with a crime, issued after a preliminary hearing) or the indictment (the charging document issued by a grand jury) charges a serious felony, certain violent sex crimes, any felony in which the defendant used a gun, or any offense of driving while under the influence. (Ca. Penal Code Section 1192.7.) The law had only three exceptions–bargaining could be done when
- there is insufficient evidence to prove the people’s case
- testimony of a material witness cannot be obtained, or
- a reduction or dismissal would not result in a substantial change in sentence.
But cases continued to be negotiated and pled, even when the exceptions didn’t apply–how so? The law applies only to charges in the information or indictment, which meant that it did not prohibit bargaining prior to that, such as after arraignment, or before the preliminary hearing, or during a grand jury investigation. Prosecutors and defense attorneys do their negotiating during these times. Often, the bargain suffers as a result of both sides not having enough information to make informed offers and acceptances. And sometimes, evidence that comes to light after the case is bound over for trial might motivate either side to seek a negotiated plea–but it’s too late. Critics of the plea bargain ban, seeing it as the public’s emotional response to crime, have pressed for its repeal. Nolo.com
Plea bargaining also permits the courts to treat the defendant as an individual, to analyze his emotional and physical characteristics, and to adapt the punishment to the facts of the particular offense. (See generally Newman, pp. 112-130.) In some cases, only the bargained reduction in the charge can enable the judge to exercise his discretion as to meaningful sentencing alternatives. fn. 5 The ABA Standards note that “Conviction of the offense actually committed may result in severe restrictions on the sentencing judge’s discretion; for example, the offense may carry a high mandatory minimum sentence or may not be probationable. Trial judges are extremely critical of such restrictions, as they feel that by ‘accepting lesser pleas … [there may result] a finer adjustment to the particular crime and offender than the straight application of the rules of law would permit.'” (ABA Standards, p. 45, quoting in part from Breitel, Controls in Criminal Law Enforcement (1960) 27 U.Chi.L.Rev. 427, 432; see Challenge, p. 135; Newman, pp. 112-113.) People v West
Brady v. United States, 397 U.S. 742 (1970), was a United States Supreme Court case in which the Court refused to hold that large sentencing discounts and threats of the death penalty are sufficient evidence of coercion. Wikipedia