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Criminal Law: Plea Bargaining — Is It Ethical?

If you have watched any criminal law shows on television at all, the term “plea bargain” is not an unfamiliar one. Almost every prosecutor on any program offers the perpetrator a plea bargain, usually for the sake of making the show exciting and entertaining, by giving up damaging testimony against a “bigger fish” in the huge sea of despicable barracuda swimming the face of the earth.

However, even in the fictional-based-on-truth world of crime shows, the ethical and moral aspect of letting a perpetrator off with a lighter sentence or even none at all, crops up. “The Closer,” one of the top rated shows for the past seven years has just changed their procedures much to the dismay of the guys and gals who worked with Brenda Leigh Johnson. She “closed” her cases, made few bargains and brought the intended criminal to justice, even when she broke a few rules to get it. Her successor, Captain Sharon Raydor is more inclined to bargain and shop around via plea bargaining to achieve the most successful overall arrest to satisfy her bosses and keep production time and costs low.

Which is better?
In real life, plea bargaining is helpful to alleviating overbooked court schedules, overcrowded jails and saving taxpayer’s the cost of expensive trials. Defendants are offered lighter sentences, less severe charges and keeping their criminal records cleaner, based on the seriousness of the crime, the evidence stacked against them and the probability factors that a jury would indeed return a guilty verdict if it goes to trial.

Is this the ethical thing to do? If a person used a baseball bat in a fight, and the victim was not killed, is it okay to let them walk off with a simple assault charge rather than attempted murder? What if they kill their next victim? Prosecutors have the power to bargain with both the charge and the sentence, and the percentage to have negotiated some type of deal is said to be as high as 90% of all criminal cases.

How does the victim feel about plea bargaining?
Here is a case where they felt violated again:

After Dietrich initially complained about the plea deal the two teens received, Paul Richwalsky, chief prosecutor in the juvenile court division of the county attorney’s office, told her “get over it and see a therapist. … The jail was for ‘real’ rapists, murderers and robbers,” according to an affidavit released Thursday.

A “bird in hand is worth two in the bush” comes to mind when criminal trials do not always return the verdict expected; think: O. J. Simpson. Also, to take a dangerous criminal off the streets being the most important thing, do we really “care” if it was for tax evasion instead of murder as in the case of Al Capone? What do you think? The jury is still out.

Adam Abel is a legal writer living in Los Angeles, and frequently contributes to various legal blogs and publications.  This article is written on behalf of Orlando defense attorney David S. Glicken.


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