9.3: Sentencing Policies

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Consider the following three areas that have contemporary impacts on the CJ system. They are plea bargaining, truth-in-sentencing, and mandatory sentencing. This section offers a brief policy proposal on plea bargaining. The reader should consider their own policy for the remaining two that will offer guidelines to enhance the equity, efficiency, and efficacy of this policy. Truth in sentencing and mandatory sentencing is discussed further on in the material.

Plea bargaining is a main stay of the American criminal justice process, as indicated by Marion & Oliver (2012:2006) “95% felony convictions in state courts are the result of guilty pleas” (p. 343). There is nothing on the horizon to make anyone think it is going to change. The sheer volume of criminal cases in our courts daily would grind the system to a halt if plea bargaining was not permissive. One item that makes a local judge happy (Criminal and Civil) is a reduced or clean docket. There is no secret to the fact that trials are expensive and time consuming. Every citizen in the United States is entitled to their day in court, to be confronted by witnesses against them, right to a defense, and right to speedy trial. Certainly this looks great printed in the American Constitution and defined by the high court. Albeit nice, it remains impractical. To satisfy burgeoning court dockets, the courts have fashioned plea bargaining policy. The high court has permitted a pathway to justify plea bargaining. Hearing judges may aid in the plea process with a gentle nudge through mild pressure placed on participants (Marion & Oliver, 2012:2006).

I would not change the process per se but would offer some minor tweaking. First all petty offenses of a non-violent nature would meet with administrative law judges and receive an opportunity to be heard and a civil compromise would be levied in the finding of guilt. An Administrative Law Judge (ALJ) is a legal scholar (retired judge or lawyer) with authority of a sitting criminal judge in a less formal setting (relaxed rules of evidence) not requiring a bogged down system with lawyers, as the ALJ will be the guardian of rights for defense and prosecution. A civil compromise is a finding that does not label the defendant or provide them with a criminal record, much like the traffic court system (much like a driving record there is a recording of the event but not criminal). Second, if the defendant is habitual then the system is no longer available to this person. This system is based on the ability of the accused and accuser to negotiate justice. This will be particularly effective for bad checks, code violations, traffic, public intoxication, underage drinking etc.

The actual plea bargaining process will be limited to misdemeanors and felonies of less substance (non-violent matters or identity theft or larcenies less than $5,000) for the first time offender. If there exists a specialized court for a specific offense such as DWI Court, Drug Court, Mental Health Court, or Domestic Court, then that becomes the court of original jurisdiction. Pleas will be categorized by type of offense, prior criminal history and victim impact statement. The ALJ retains the authority to bump an offender to a higher court.

Spohn (2000) contends in his study “The finding of this review suggest that the disproportionate number of racial minorities confined in our Nation’s jails and prisons cannot be attributed solely to racially neutral efforts to control crime and protect society. Although it is irrefutable that the primary determinants of sentence decisions are the seriousness of the offense and the offender’s prior criminal record, race/ethnicity and other legally irrelevant offender characteristics also play a role”(p. 481). Due to recidivism rate of offenders then the second offense will often require serving full sentence of first offense then plea must contain rehab criteria before release, after release and relocation from existing environment similar to witness protection. Does the ethical issue of racial disparity interact with the plea bargaining process?