Think about the oldest and most familiar principles of American law, property and proportional liability, in a new and surprising way, and learn to apply economic reasoning to an especially important and interesting aspect of life.
"An Essential Component"
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Do curso por Wesleyan University
Propriedade e Responsabilidade Civil: Uma Introdução ao Direito e a Economia
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Wesleyan University
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Criminal Procedure
Criminal liability means that crimes have prices, and how these prices are exacted in practice from people who take rights without compensation is the problem of criminal procedure. How do judges know who is guilty, and what prices guilty people should be made to pay for their crimes? Around the world, two major systems of adjudicating guilt and punishment, the adversarial and the inquisitorial, have evolved over centuries to answer these questions in individual cases, with very different procedures to assess guilt and punishment that express different commitments to truth and fairness. All these procedures are expensive, and governments everywhere must confront the problem of processing large caseloads with limited resources. This has led the inquisitorial systems of Europe and the adversarial systems of England and the United States to new procedures of adjudication that may be reducing the differences between them.
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Richard AdelsteinProfessor
Department of Economics
Hi, everybody, welcome back. Despite all the work that the Brady Court
did in laying down ground rules to govern plea bargains in the United States in the
future, the Brady Court never really made the reason for its embrace of plea
bargaining explicit. That was left to the next term of the
court, in the following year, when Chief Justice Burger made that reason explicit
in an opinion in a case called Santobello versus New York.
Chief Justice Burger said plea baargaining is an essential component of
the administration of justice Properly administered, it's to be encouraged.
And here's the crucial sentence. If every criminal charge were subject to
a full scale trial, we would need to multiply by many times the number of
Judges and Court facilities. Berger knew, as everybody did, that the
people were not about to increase by many times, the number of Judges and Court
facilities. And thus, plea bargaining was an
essential component of the administration of justice.
Without it, the system would collapse and there was nothing remotely within the
budgetary bounds of the system as we know it that could come in to replace it.
So, it was essential that the plea bargaining system be preserved, at least
until something better could be devised, if ever.
But that also meant that, it needed to be regulated both so that it worked well and
that it didn't do injustices to the people represented by the prosecution or
to defendants themselves in the bargaining process.
That very case, Santobello versus New York, concerned a man, Rudy Santobello,
who was charged with a series of low-level gambling offenses in Brooklyn.
He'd been through the criminal justice system before and knew how this sort of
thing worked. And so he agreed to plead guilty with the
prosecutor, if the prosecutor himself would agree not to recommend to the judge
at sentencing time, that a prison sentence be imposed.
The felonies that Santobello was charged with carried a prison sentence, but the
sentencing concession was, that the prosecutor would not recommend to the
judge that Santobello be imprisoned. Through no fault of the prosecutors, as
things happen in large bureaucracies, by the time that the case actually came for
the plea to be entered. After the plea agreement had been
reached, the state was represented by a different prosecutor, and this second
prosecutor had apparently not been informed about the bargain that had been
made by the previous prosecutor with Santobello.
And so, when it came time to enter the guilty plea, Santobello pleaded guilty,
expecting that the judge would not sentence him to jail because the
prosecutor wouldn't recommend so. But to Santobello's surprise, the second
prosecutor unaware of what the first prosecutor has promised, cited
Santobello's long record and urged that he'd be given a one year jail term, which
the judge promptly did. Santobello that is expected to be given
one plea bargain sentence, and when the actual plea bargain came to be done, he
was given a different sentence, a higher sentence.
And so, he asked the courts to allow him to withdraw, or as they say, reopen his
guilty plea and have a chance to plead again, in which case, he would presumably
not plead guilty in exchange for the same bargain.
It's the lemons problem that we saw earlier in the course, now in the context
of a plea bargain. If defendants aren't sure that
prosecutors will keep their promises in plea bargaining, then the defendants will
demand lower sentences from the prosecutors before they agree to plead.
Just as in the lemons case. Buyers, knowing that there's uncertainty
about the quality of their used cars, will lower the price that they're willing
to offer for any used car. And here, here, defendants will demand
lower sentences to account for the uncertainty that comes with the sense
that prosecutors might renege on their promise.
And just as in the market for lemons and for creme pops, behavior of this sort,
breaking promises by prosecutors. Threatens the existence of the entire
plea bargaining system. What we might call the market for guilty
pleas. It's possible to see this in terms of the
simple equation that we introduced last time.
Recall that we said, as you look at the top of the slide, that defendants will
plead guilty if the cost to them of the sentence that they'll receive after the
plea bargain, marked SPB. Is smaller than the expected cost that
they face from the prospect of going to trial.
Which is the probability that they'll be convicted multiplied by the consequence
to them if they are convicted. Which is the cost of the trial sentence,
ST. Which we assume is substantially larger
than SPB. But the possibility of a broken promise
makes the expected sentence, associated with an offer SPB grater than SPB.
That is, the possibility that the prosecutor can break his promise makes
any plea bargain itself subject to some uncertainty.
We thought, at least we did before cases like this appeared, that when the
prosecutor offered a particular sentence that was that, and the defendant could
count on receiving that sentence. And so it was easy to compare the costs
of that sentence to the costs of the trial prospect.
But now, with the possibility of broken promises by the prosecution, the
defendant must add an element of uncertainty to any promise that the
prosecutor makes during the plea bargain. And that element of uncertainty, which on
the slide I've represented by adding a small or large depending on the degree of
the uncertainty, component h. To the plea bargain that the prosecutor
says that he or she is going to honor. Then, as you can see from the second
equation. It's quite possible that the uncertainty
will cos-, push the cost of the plea bargain above the expected cost of the
trial prospect. As you can see in the example, the, if
there were no uncertainty, the defendant in this case would accept the plea
bargain. But because there is uncertainty and the
defendant has to add that little kicker, h, to SPB to account for the uncertainty.
It may well be that the plea bargain with the uncertainty is not as good a trial a
prospect for the defendant as going to trial itself.
And that means that bargains that would have been made without the uncertainty
won't be made. And in their stead, costly trials that no
one wanted at all will be undertaken in their place.
So, in order to avoid this result, this threat to the entirety of the plea
bargaining system itself, the court voided Santobello's plea and allowed the
plea to be reopened to protect the larger system.
The vehicle that they had at there disposal to reach this result was the
same due process clause of the 14th amendment that we saw discussed in
Magotha versus United States. Here, that same due process of law clause
was held to require that prosecutors must keep the promises that they make in
bargaining. Because that's a matter of fundamental
fairness. Everybody's supposed to keep the solemn
promises that they make. Especially in situations as important as
this. So, as in the market for lemons, what's
fair and what's efficient are again the same thing.
Governing plea bargains, which is what the Supreme Court started to do with the
Santobello case. Led in the Santobello case to a sort of
curbing of a behavior by prosecutors that might threaten the plea bargaining
system. But the court didn't mean to suggest that
prosecutors couldn't play hardball with defendants in the plea bargaining
process. Americans use the expression playing
hardball. When people actually get down to hard
bargaining and don't show much mercy to one another in bargaining to get what
they want. Prosecutors routinely play hardball in
plea bargains with defendants. And this is because the discount that is
given to defendants who agree to plead guilty only has meaning and force to
them. If defendants who don't accept plea
bargains, and instead insist on a trial receive substantially higher sentences
after a trial conviction than they would have received had they agree to plea
guilty. That's because the only way to induce
guilty pleas is to make sure defendant know that they'll be sentenced harshly if
they insist on a trial. Put another way the people who insist on
a trial have to be sentenced harshly if they're convicted.
In order to encourage the next round of defendants to plead guilty to the in
accord with the bargains that the prosecutors are offering.
This practice of prosecutorial hard ball by threatening defendants who insist on a
trail with very severe consequences was tested in a case that came before the
court in 1978 called Bordenkircher v Hayes.
It arose out of the state of Kentucky which has what Americans call a three
strikes law. There's a baseball umpire on the right
singaling the third strike and after the third strike a batter in baseball is out.
Similarly after a third strike a felon is in prison for life.
Three strikes laws typically read as the one in Kentucky did, that after someone
has been convicted of a third felony. Sometimes a third violent felony although
in Kentucky only a third felony. Then, if the prosecutor asks for it, then
the Court will automatically sentence that person to life imprisonment for the
conviction of the third felony. This is obviously meant to deter habitual
offenders by effectively saying to them, you get one strike at a low price, a
second strike at a low price. But if you get a third strike, the price
no matter what the offence was, will go up very, very high.
We don't like habitual offenders. We'll treat them harshly.
So, along comes Hayes with a long record of minor felonies including many more
than three felony convictions, and he is accused of passing a bad check In the
amount of $88. Which is in fact a felony under Kentucky
law, but frankly, nothing like an armed robbery or a murder.
In order to get a plea agreement the prosecutor offers this habitual offender
a plea bargain with a five year sentence. And of course, we'll assume that the
prosecutor would have kept the promise, and had Hayes pleaded guilty he would
have been sentenced to five years. But the prosecutor said to Hayes, that if
he decided instead to go to trial, and was convicted of passing the bad check
for $88. The prosecutor would invoke the three
strikes law, and Hayes would be sentenced to life.
Hayes, perhaps not believing the prosecutor's threat, or perhaps thinking
he could be acquitted of this felony after losing in so many earlier ones.
Refused the plea bargain, went to trial, was convicted of passing the bad check
for $88 and at the prosecutors motion was sentenced to life under the three strikes
law. In earlier cases, the Supreme Court had
said that prosecutors couldn't act vindictively against defendants in plea
bargaining. It was okay to play hardball with them,
but you couldn't treat them specially vindictively because you had something in
for them, because you didn't like them. Because there was something about their
crime that made you particularly upset, and treated them particularly harshly.
It was pretty clear that the prosecutor treated Hayes harshly in this case.
But the question before the court was whether this was sufficiently vindictive
to allow Hayes to open the plea. And thus to discipline prosecutors and
tell them that they could not invoke laws like the three-strikes law for the
purpose of getting minor criminals like Hayes to agree to plea bargains.
In answering the question, however, the court said no, as it had to.
Because if the plea bargaining system is to work, as Justice Stewart said for the
court, we must accept the simple reality that the prosecutor's interest at the
bargaining table is to persuade the defendant to plead guilty.
And unless the actual threat is illegal for some other reason, say that Hayes is
in fact not eligible to be sentenced under the three strikes law.
Or the prosecutor for some other reason has no power to back up the threat.
Or, if there is not enough evidence involved for anyone to think that Hayes
has violated the three strikes law. Then, of course, he can't be charged with
it. But in this case, there was no such
problem. Hayes was liable under the three strikes
law. Nobody doubted that he was.
And in that case, Justice Stewart said for the court.
Prosecutors are entitled to use that power, to induce plea bargains,
otherwise, the system simply won't work. And so, despite the undignified spectacle
of haggling for justice, something that causes scholars and observers from around
the world to look with some justified scorn, at the American way of doing
criminal business. The Supreme Court has now openly
acknowledged how deeply the American criminal justice system depends on plea
bargaining, and so it's been able to regulate the system for efficiency and
fairness openly since 1970 as its continued to do.
All the way down to the present day, from Santobello and Bordenkircher.
Other systems however, the English are what I have in mind, have in fact plea
bargaining, but they haven't looked at it quite as candidly as American judges
have. And this has caused problems for the
English criminal justice system.
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