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  1. Introduction
  2. Overview of The Criminal Justice Process
  3. The Investigatory Process
  4. The Adjudicatory Stage
  5. The Criminal Trial
  6. Sentencing
  7. Plea Bargaining
  8. Racial Aspects of The Criminal Justice Process
  9. The Relationship Between Substance and Procedure
  10. Bibliography


The criminal justice process consists of the steps taken by public officials to administer criminal punishment. Criminal justice experts distinguish between the investigative and adjudicative phases of the procedure. Before an investigation can begin, cases must be brought to the notice of officials; however, the boundaries between the two stages are sometimes unclear, and the same individuals may be involved in both investigation and adjudication. Despite these significant caveats, the label of investigative/adjudicative remains highly helpful.

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Overview of The Criminal Justice Process

In general, the investigation stage is an inquisitorial procedure administered by police, whereas the adjudicatory stage is an adversarial process administered by judges and attorneys. Occasionally, prosecutors take the lead in the investigation, and occasionally, the police investigation continues even after the adversarial adjudication process has commenced. The contrast between police investigations done prior to a suspect being formally charged with an offense in court and the adjudication of those charges provides a sound overview of the criminal justice system, despite the occasional inaccuracy of this sweeping definition.

Although the term inquisitorial has certain negative connotations in Anglo-American legal culture, it refers only to the absence of named defendants in this instance. Obviously, there can be no adversary procedures without a defendant. During the earliest stages of an inquiry, when authorities may be uncertain as to whether a crime has been committed or the identity of the culprit, it is equally evident that no adversarial criminal justice procedure can exist. Many long-standing criminal justice problems, such as those regarding police interrogation and eyewitness identification hearings, include arguments on when the inquiry should end and the adjudicatory process should begin.

An essential distinction between investigative and adjudicative processes must be made at the outset. Obviously, it is conceivable to delegate judicial authority to the police by combining the investigation and trial. In such a system, the police, whether officially or clandestinely, have the authority to employ violence such as arrest and search in order to bring about a fair trial. In addition, they have the authority to punish alleged criminals without judicial authorization. Such systems, to which the term “police state” is aptly applied, have existed in numerous locations and eras. Even in cultures with a strong political commitment to due process, police occasionally penalize people without a trial. Consequently, the distinction between inquiry, which for practical reasons must be assigned to a paramilitary executive agency, and adjudication, which is made more rather than less important by the existence of a paramilitary police force, is not arbitrary. It is the best institutional system that humans have devised so far for defending themselves from private crime without submitting to arbitrary state authority.

Criminal justice is not the only recognized method of coercive social control. After a civil, as opposed to a criminal, hearing, individuals who are mentally ill and a threat to themselves or others may be committed to institutions indefinitely. The state may seize contraband and the fruits or instruments of crime, such as an airplane used to carry drugs, in both civil and criminal forfeiture actions. When permitted by statute or judicial judgment, the government, like private individuals, may file a civil case seeking punitive damages. The criminal justice system is the most comprehensive and famous form of coercive social control, but it is by no means the only one.

The criminal justice system in the United States is extremely variable. Federal practice differs from state practice, and state practice differs from state practice. Different police departments employ distinct investigative methods, and different court systems follow distinct protocols. Following will be an abundance of words such as “typically,” “commonly,” and “generally.” It would be impossible to make a statement about the American criminal justice system that could not be qualified by an exception. Despite this, the following description may be informative, given that real people only go to jail in exceptional circumstances defined by the laws of a single jurisdiction, which may deviate from the norm in a number of significant ways.

The Investigatory Process

Typically, an investigation into a crime contains three components. First, public officials, typically the police, must become aware that a crime has been or will be committed. Second, law enforcement officials must identify the suspect or suspects. Finally, they must collect and maintain evidence that the courts will accept as establishing beyond a reasonable doubt the suspect’s guilt.

There are two fundamental ways for law enforcement to learn about criminal activity. Officers may personally observe the crime or its evidence, or they may receive a report or complaint from a third party. Surprisingly many crimes are found by police by direct observation, despite the fact that it may appear that this occurs quite infrequently. Police on patrol may see suspicious behavior, such as a vehicle circling slowly in an after-hours commercial area with a license plate belonging to a recently reported stolen vehicle. In addition, a large number of crimes, including prostitution, illicit firearms, and drug offenses, do not involve anyone willing to file a police report. Despite the fact that these cases frequently involve cooperating informants, effective investigation rely heavily on undercover police personnel.

Citizen reports are another important source of crime information. Not all crimes are reported to the police, and not all recorded crimes actually occurred or occurred as the initial informant indicated. Rarely are false reports motivated by retaliation or insurance fraud. The failure to report crimes is significantly more common.

There are a lot of reasons why crime victims and witnesses may not come forward. They may view the likelihood of apprehending the criminal as insufficient to warrant their time in reporting and testifying. They may fear retribution from the perpetrator or those acting on his behalf. They may be related to the criminal or on friendly or intimate terms with him. When researchers estimate the crime rate by surveying sample populations and asking how often the respondents have been victimized (victimization surveys), the rate of actual crime appears to be significantly higher than the rate of reported crime. There is consensus that homicide and auto theft are the most often reported crimes. Additionally, it is well acknowledged that sexual assault and domestic violence are underreported.

Once the police have decided that a crime has been committed, they must identify the criminal (or perpetrators). They must also collect court-admissible evidence of guilt. Although these two procedures are closely linked, they are not identical, as some of the evidence police frequently utilize to identify the likely perpetrator is inadmissible in court. For instance, police investigations frequently rely significantly on the statements of informants based on what they have heard rather than what they have personally observed. Even if the informant were willing to testify (which is frequently not the case), the hearsay rule would preclude the informant from testifying about what he or she has overheard others say about the crime. The criminal history of individuals previously arrested or convicted for acts similar to the one under investigation is another crucial example. The police often consider the records of potential suspects, although character-evidence standards normally prohibit courts from admitting such evidence.

Even when the evidence at hand is admissible in court, the authorities must consider its probative value when picking potential suspects. Eyewitnesses are notoriously unreliable and may provide police with wholly wrong descriptions of the perpetrator. Rarely, people may confess to crimes they did not commit. Far more frequently, people assign crimes in which they participated to others who were not involved or who were involved to a lesser extent. False alibi and other similar excuses can be used by witnesses to protect the guilty. Physical evidence is not susceptible to fraud, but it may be misleading in other ways, such as when illegal substances are discovered in a vehicle with multiple passengers who accuse each other of sole possession.

Faced with these obstacles and under severe time and budget constraints, the police must pick prospective suspects. Due to the fact that police departments frequently evaluate the performance of their officers based on the clearance rate (the proportion of reported crimes that result in an arrest), the police may have an incentive to focus on the most likely suspect, regardless of how unlikely his guilt is in comparison to that of unknown persons. On the other hand, the police may have very strong suspicions about the suspect’s identity, yet be unable to prove his guilt beyond a reasonable doubt with acceptable evidence.

The Supreme Court of the United States has interpreted the Constitution to govern certain aspects of police investigations. The police may not detain people on the street for investigation without objective evidence of criminal activity; they may not search homes without a judicial warrant based on probable cause; they may search vehicles based on a determination of probable cause, without first obtaining a judicial warrant; and they may not arrest an individual without probable cause to believe the individual has committed an offense. Miranda v. Arizona, 384 U.S. 436 (1966); Miranda v. Arizona, 384 U.S. 436 (1966); Miranda v. Arizona, 384 U.S. 436 (1966); Miranda v. Arizona, 384 U.S. 436 (1966); Miranda v. Arizona, 384 U.S. 436 (1966); Miranda v. Arizona, 384 U.S.

Almost entirely, these prohibitions are implemented through the rejection of evidence gathered in violation of the applicable constitutional requirements. Police that are more concerned with seizing a drug shipment than prosecuting the courier may have less incentive to acquire a warrant before searching for the contraband. As long as their testimony is likely to be accepted in court, police who are willing to lie about how they collected evidence have no motivation to comply with the regulations.

Thus, the police investigation follows a dialectical or give-and-take process, in which investigators create a hypothesis regarding the identity of the perpetrator and collect evidence tending to substantiate that hypothesis until fresh information emerges exonerating the suspect. Without a knowledge of the prospective criminals’ identity, there would be no way to discriminate between proof and entirely irrelevant data. The police do not have the means to begin each inquiry by determining the alibi of every person in the city. However, the selection of suspects affects the collected evidence; if the police focus on Smith as the perpetrator, Jones will not be required to stand in a lineup.

“Realistic” fiction of the police-procedural sort, whether in print or on screen, captures the essence of this procedure reasonably well. However, police fiction dramatically exaggerates the epistemic authority of the investigative procedure. The fictitious police never miss a suspect. In reality, only approximately 20% of all reported offenses are cleared by arrest.

Observers have always known that not all arrested individuals are guilty, but DNA testing has revealed that the investigation process is more susceptible to false positives than previously supposed. A quarter of conclusive DNA tests conducted at the request of the police nationwide exonerate the criminal. In circumstances when tangible evidence permits testing, this is excellent news for the innocent (and bad news for the guilty). In the vast majority of situations where physical evidence does not permit scientific verification of identity, however, police investigations frequently identify the wrong person as the perpetrator. This is not an encouraging trend.

In a society where the vast majority of crimes go unreported and only around one-fifth of reported crimes result in an arrest, it is evident that law enforcement officers must make difficult decisions regarding the allocation of their limited resources. Neighborhoods must be assigned patrol officers. Certain types of crimes must be assigned detectives and undercover agents. Should undercover detectives focus on drug laws or prostitution laws? How strongly should police patrol efforts be concentrated in a high-crime area? Residents (usually impoverished and frequently disproportionately racial minorities) may be denied police protection unjustly if there are insufficient police officers. There may be either the perception or the actuality of discriminating overenforcement if there are too many police officers.

The model of a police-dominated inquiry followed by judicial adjudication must be changed to incorporate instances in which prosecutors lead the investigation. Typically, prosecutorial investigations involve “white collar” crimes of an economic or political character, or organized crimes involving narcotics, gambling, and loan sharking. Prior to pressing charges, prosecutors in white-collar cases typically conduct witness interviews and take sworn testimony before an investigative grand jury. In the case involving organized crime, prosecutors must collaborate closely with the police or federal agents. The prosecutors assist the cops’ petitions for warrants for electronic surveillance and negotiate immunity for informants, while the officers recruit or plant informants and carry out the arrests and searches.

The Adjudicatory Stage

In the United States, the adjudicatory procedure differs substantially from one jurisdiction to another, although being generally comparable across the country. The majority of instances begin with an arrest by the police. The Supreme Court has ruled that the Constitution necessitates a timely finding of reasonable cause to believe an individual has committed a crime. If the judicial judgment of probable cause was not made prior to the arrest by the issuing of a warrant or the return of an indictment by a grand jury, the arrested individual must be taken before a judicial official for a determination of probable cause. The Court has recognized a presumption that imprisonment without judicial authorisation that exceeds forty-eight hours is unlawful, notwithstanding the fact that the time period preceding this initial appearance is not precisely defined.

The hearing on probable cause need not be more complex than the procedure for issuing an arrest warrant. No official charge is required at this time, and the Supreme Court has determined that the right to counsel does not emerge until a formal charge is lodged, whether by indictment, information, or complaint. Despite this, it is normal practice to perform multiple functions at the initial court appearance if the court deems that probable cause exists. It is possible to set bail or other terms of pretrial release, to appoint counsel for the destitute, and to set a date for further proceedings.

The time between arrest and court appearance affords the police the opportunity to question the defendant in accordance with the Miranda rights. Once the suspect is represented by counsel, it is extremely improbable that he will provide information, and any questioning by the police after the defendant’s right to counsel has attached is unlawful. The Miranda right to counsel is drawn from the Fifth Amendment privilege against self-incrimination, not the Sixth Amendment right to counsel at trial. If the adjudicatory process were understood to begin at the time of arrest, there would be no period of time during which the suspect’s Sixth Amendment right to counsel at trial was unprotected. In Miranda, the Supreme Court accepted the idea that counsel may be waived without an appearance in court or consultation with counsel for interrogation purposes, but has never indicated that such a waiver would be acceptable at trial.

After the arrest and judicial determination of probable cause, the prosecutor choose a charge as the next stage in the procedure. Prosecutors have a great deal of discretion in choosing charges. Consider a suspect who shot a gun at another man as an example. As the suspect was acting in self-defense, this might be deemed a non-criminal act (or because the prosecutor concludes that although the defendant was not acting in self-defense a jury might conclude otherwise). On the opposite end of the spectrum, the case could be charged with attempted murder or serious assault. It could be charged as illegal possession or discharge of a firearm or as a simple assault. The prosecutor may, but is not required to, add a charge under a recidivism statute such as the three strikes laws if the subject has prior convictions. Consequently, prosecutors have the power to expose the defendant to a spectrum of culpability ranging from zero to a large number of years.

In a considerable majority of cases, prosecutors decline to continue. In some instances, the police never anticipated a prosecution and made the arrest merely for immediate purposes of social control. For instance, the police may arrest one or both of the intoxicated individuals involved in a quarrel in order to avoid additional violence or to prevent one of the intoxicated individuals from passing out outside on a chilly night. In other instances, the police may hope for a conviction, but the prosecutor may determine that the evidence is insufficient to convince a jury.

Frequently, the prosecutor will agree to withdraw criminal charges if the defendant agrees to participate in an alternative program designed to avoid a repeat offense. The prosecution may agree to dismiss the criminal charge against a defendant charged with a drug-related or drug-induced offense if the suspect enters a drug treatment program. These so-called diversion agreements are fairly prevalent, and there is a wide array of programs to which individuals may be diverted from the criminal justice system.

Juveniles constitute a significant proportion of the arrested population. Statutorily, all U.S. jurisdictions have dedicated juvenile courts that handle both delinquency cases and activity that is legal for adults but prohibited for minors, such as drinking alcohol (status offenses). Frequently, the juvenile court has authority over child welfare proceedings as well. Generally, the applicable statutes allow adolescents suspected of committing significant offences to be transferred to the adult criminal justice system and tried as adults.

The juvenile court system contains the majority of the same steps (investigation, accusation, presentment, bail, accusation, discovery, plea bargaining, motions, trial, etc.) as the adult court system. The Supreme Court has not yet mandated that juvenile cases be tried by a jury, but the subject may be considered open for discussion in the future.

In jurisdictions that do not require indictment by a grand jury, the prosecutor may unilaterally file an information accusing the defendant of the crime or crimes pursued. Approximately half of states and the federal government require criminal cases to be indicted by a grand jury. Whether the accusation is presented in the form of an indictment or an information, its fundamental function is to enable the defendant to prepare a defense for the upcoming trial.

Typically, the grand jury is comprised of twenty-three persons who assess the prosecutor’s cases. In practice, grand juries rarely reject a prosecutor’s request for an indictment, despite having the ability to do so.

If an indictment is filed prior to the arrest, the procedure will alter slightly. The defendant will either be arrested or will turn himself in to face the charges. The procedure will then continue in the same manner as in instances that begin with an arrest, with the essential exception that the Sixth Amendment right to counsel attaches even before an arrest. In the absence of a legitimate waiver of the right to counsel, the attendance of defense counsel is required at so-called key phases of the procedure. Interrogation, lineups, and court appearances are crucial phases. Not included are picture identification sessions, interviews with witnesses other than the defendant, or the collection or testing of physical evidence.

After the prosecutor choose a charge and files it in court, whether by indictment, information, or complaint, the next step is an arraignment at which the defendant appears to hear the charges and enter a plea. Before entering a plea, if the defendant has not yet retained or been appointed counsel, counsel must be appointed, retained, or waived in open court. Similarly, if bail has not been previously established or denied, a decision about pretrial release will be made at this time.

If the defendant and the prosecution are unable to reach a plea agreement and the matter proceeds to trial, there will normally be a discovery phase, a chance to file pretrial motions, a preliminary hearing, and a trial. The discovery procedure has expanded, but it still falls well short of what is authorized in civil cases. Fears that criminal defendants are more prone than civil litigants to harass or intimidate witnesses and the notion that the defendant’s choice not to testify unfairly transforms criminal discovery into a one-way street are the primary reasons for the disparity.

Brady v. Maryland, 373 U.S. 83 (1963), is the case that established the Supreme Court’s Brady doctrine, which mandates the prosecution to provide the defense with any significant exculpatory evidence upon timely request. Typically, court rules compel both parties to reveal the names and addresses of the witnesses they want to call, allowing the opposing party to examine them prior to trial. In many countries, the defense is required to provide early notice of its plan to assert specific defenses, such as insanity, alibi, entrapment, or consent.

According to the adversarial system’s theory, justice is most likely to result from a contest in which each party prepares its own case. In practice, restricted resources weaken the validity of the idea. Most criminal defendants are represented by lawyers provided by the government. There is broad consensus that the monies available for indigent defense do not empower defense lawyers to conduct independent investigations in every instance. Caseload pressures, typically in the hundreds of felony files per attorney per year, necessitate that defense counsel select only a few cases for trial while negotiating the most favorable feasible plea arrangement for the others.

Pretrial motions may be filed for a variety of reasons, including, but not limited to, the following: (1) suppression of otherwise admissible evidence obtained improperly; (2) change of venue; (3) admission or exclusion of evidence; (4) compelling discovery withheld by the other side; (5) determining competence to stand trial; and (6) court appointment of expert witnesses for an indigent defendant. The court decides motions without a jury. If a finding on a motion hinges on contested facts, the court will conduct a hearing to determine the facts. Generally, pre-trial judgements are not appealable by the defense until after a conviction, but they are frequently appealable by the prosecution, as otherwise the double-jeopardy principle would bar a retrial even if the government lost the trial due to an erroneous ruling on a motion.

Similar to verdicts on motions, the court conducts the preliminary hearing without a jury. In theory, the preliminary hearing is intended to serve as both the ultimate test of probable cause for a trial and as a tool for discovery. Actual practice varies a great deal. In other instances, prosecutors present their whole case in order to induce the defense to enter a plea and to preserve the testimony of swaying witnesses. In other instances, the prosecutor may only present the minimum amount of evidence required to proceed to trial for fear of allowing the defense an opportunity for discovery.

The Criminal Trial

If the defendant requests a jury trial, jury selection is the first step in the trial. In a venire, potential jurors will be summoned to court. They will be interrogated by the court, their attorneys, or both. Potential jurors will be excused if they have ties to one side or the other, or if they demonstrate an unwillingness to act impartially. Each side will have a limited number of peremptory challenges, which can be used without explanation. Typically, the defense is permitted more peremptory challenges than the prosecution. Batson v. Kentucky, 476 U.S. 79 (1986); Georgia v. McCollum, 502 U.S. 1056 (1992); if either party utilizes peremptory challenges to excuse potential jurors in a manner that could be regarded as racially motivated, the trial court must demand a race-neutral explanation of the peremptory challenges.

After the jury has been selected, both the prosecutor and the defense attorney may make an opening statement. The prosecution then opens its case by summoning witnesses to the stand. The defense is permitted to cross-examine their testimony. At the conclusion of the government’s argument, the defense may petition for a directed judgment of acquittal if the government’s evidence was insufficient to enable jurors to determine the elements of the alleged offense beyond a reasonable doubt.

If the government has established probable cause, the defense has the opportunity to present its case. The prosecution may not bring the defendant to the stand, and the defendant may decline to testify in his own defense. The jury is likely to believe that a defendant who refuses to testify is concealing something, but if the defendant does speak, his prior convictions can be used to undermine the credibility of his evidence. The prosecution will have the opportunity to call witnesses in a rebuttal case if the defense presents its case.

The court will next teach the jurors on the legal issues in the case, and both parties will have the opportunity to present their closing arguments. There is no consistent pattern regarding whether the instructions follow or precede the arguments of counsel. During the argument phase, the prosecution typically presents the opening argument, the defense the second, and the prosecution the closing argument.

The Supreme Court has affirmed six-member juries rather than twelve-member juries. However, the majority of jurisdictions continue to employ 12-person juries. The Supreme Court has affirmed nonunanimous jury convictions of eleven to one, ten to two, and nine to three, but many jurisdictions continue to need unanimity to convict. Despite the fact that the Supreme Court has never recognized an appeal as a constitutional right, all jurisdictions allow at least one appeal for a criminal conviction. Due to the double jeopardy provision, the government cannot appeal acquittals.

Following acquittal for an offense under the laws of a separate sovereign, the double jeopardy clause does not bar a second prosecution. Thus, an acquittal on federal charges does not preclude a subsequent prosecution under state law, and vice versa.


The trial court imposes the punishment upon the criminal upon conviction, whether by plea or after a trial. In many states, the trial judge still has the power to impose any sentence allowable by the statute, ranging from the minimum to the maximum. Typically, a presentence report made by agents of the penitentiary system informs the court’s decision. The prosecution and the defense may both recommend a punishment. Although the court is not compelled by law to accept a prosecutor’s request for a lower sentence, judges are aware that ignoring such recommendations could lessen defendants’ incentives to plead guilty. Purely discretionary sentencing regimes have been criticized for punishing convicts guilty of comparable offenses more or less severely based on arbitrary variables such as the judge’s philosophy.

In 1984, Congress passed legislation establishing the Federal Sentencing Commission and empowering it to issue sentencing guidelines for federal courts. The commission’s recommendations stipulate a suggested sentence based on the gravity of the offense and the defendant’s prior record. Cooperation with the prosecution after the commission of the crime may lessen the suggested sentence, while the use of a weapon during the commission of the felony may enhance it. The sentencing judge is permitted to deviate from the prescribed sentence, but must provide grounds for doing so, and both the prosecution and the defense may appeal any departures. The federal rules have been criticized for being excessively rigorous, particularly by federal district judges.

Many states have adopted nonbinding sentencing guidelines as a compromise between the conventional discretionary system and the more rigid federal standards. The objective of these diverse systems is to eliminate sentence inequalities without pressuring sentencing judges to reach a judgment that may not be appropriate for the particular case.

Many but not all American jurisdictions permit the execution of murderers. The Supreme Court has ruled that systems of capital punishment that provide jurors unfettered power to inflict the death penalty violate the Eighth Amendment’s ban on cruel and unusual punishments. The Supreme Court has also invalidated obligatory death penalty provisions for acts such as murdering a police officer or committing murder while serving a life sentence. The Supreme Court has ruled that the death sentence for adult rape is fundamentally unconstitutional.

Regarding murder, the Supreme Court has maintained statutory frameworks requiring the sentencing jury to discover the presence of statutorily defined aggravating elements and to weigh those factors against any mitigating considerations that may be present in each instance prior to imposing the death penalty. Typical death penalty statutes stipulate a split trial. The topic of punishment will not be considered until the issue of guilt or innocence has been determined. If the jury finds the defendant guilty during the guilt phase, the trial will go to the penalty phase, where both parties may submit evidence that was not shown during the guilt phase.

It is debatable whether the Supreme Court has truly succeeded in minimizing arbitrary decisions on the death penalty. The death sentence cannot be imposed by juries unless requested by prosecutors, and the Supreme Court has not put any restrictions on prosecution discretion to seek the death penalty. In addition, by permitting defendants to bring evidence of any relevant mitigating factor, whether authorized by legislation or not, the Court has essentially tolerated a very broad jury discretion in instances involving the death penalty. Although certain Supreme Court justices have held that the death penalty is inherently cruel and unusual, none of the current justices hold this position as of early 2001.

A convicted criminal who has exhausted all available appeals may still contest the conviction by filing a habeas corpus petition. Habeas corpus is a novel civil proceeding that challenges the legitimacy of incarceration. The defendant in a criminal case becomes the civil plaintiff, while the warden or jailer becomes the civil defendant. In 1996, Congress passed laws codifying and in some ways tightening the constraints acknowledged by the Supreme Court.

Plea Bargaining

Relatively few criminal cases proceed to trial, even fewer are appealed, and even fewer are reviewed collaterally. In a significant majority of cases, prosecutors refuse to file or dismiss charges. The majority of the cases that prosecutors choose to pursue conclude not with a jury trial but with a guilty plea or a successful request to dismiss. Statistics vary by jurisdiction, but it is not uncommon for 50 percent of arrests to result in no charges or charges that are later dismissed, 80 percent of non-dismissed cases to result in guilty pleas, and the remaining cases to be tried. Typically, the government wins a substantial but not overwhelming majority of criminal prosecutions; a 70% conviction rate at trial would not be out of the ordinary.

These numbers demonstrate the prevalence of plea bargaining. The prosecution trades a decrease in the severity of the charges or the length of the suggested punishment in exchange for a waiver of the right to trial and a guilty plea to the reduced charges. Typically, both parties have valid reasons for settlement. In cases with overwhelming evidence of guilt, the prosecution can avoid the expense and duration of a trial by offering the defendant minor concessions. When the evidence is less conclusive, the government can eliminate the possibility of an acquittal by accepting a plea to a lesser charge. Because the substantive criminal law authorizes a wide range of charges and sentences for typical criminal conduct and because the procedural law gives prosecutors broad discretion in selecting charges, the prosecution can almost always provide a substantial incentive for the defense to enter a guilty plea.

A defendant who is certain to be found guilty at trial is likely to accept whatever concessions he can. The greater the government’s willingness to accept concessions, the weaker its case. The trial process typically comes into play when the parties dispute over the probable outcome of a trial. Thus, it is not surprising that a very high percentage of non-dismissed cases result in guilty pleas, although the outcomes of trials are significantly less one-sided. If 90 percent of trials resulted in convictions, more defendants would accept minimal concessions in exchange for a plea. If 90% of trials resulted in acquittals, prosecutors would make better deals or drop a greater number of cases unilaterally.

For at least three reasons, plea bargaining is problematic. First, because substantive criminal law often authorizes harsh punishments (such as the three strikes statutes), the prosecution has the ability to subject defendants to intolerable constraints. Imagine a defendant accused with petty theft who has two prior offenses. The prosecution offers to remove a three-strikes case in exchange for a guilty plea. The defendant must now choose between the possibility of a life sentence if convicted at trial, a very short term or a suspended sentence if he or she enters a guilty plea, or no sentence at all. While the Supreme Court has accepted such pleas as voluntary, they appear to be effectively compelled.

Second, the prosecution is motivated to maximize the advantage of a guilty plea in the weakest cases. The prosecution finds a guilty plea more appealing the more probable an acquittal at trial. Due to workload constraints, prosecutors may dismiss the weakest cases. In a borderline case, however, the prosecution may very easily threaten the most severe penalties against defendants who are very likely innocent.

Thirdly, the majority of criminal offenders are represented by impoverished defense attorneys who lack the means to independently research each case. Prosecutors suffer severe budget constraints as well, but in general, the government can afford to go to trial in a greater number of instances than the defense. In addition, the defense must typically choose which cases to contest based on evidence gathered by the police rather than an independent investigation. Despite these disturbing aspects, plea bargaining remains the fundamental aspect of the adjudication procedure.

Racial Aspects of The Criminal Justice Process

The justice system arrests, prosecutes, and punishes African Americans in disproportionate proportions compared to their population representation. Some of the data are quite startling. Typically, there are fewer young black men in a state’s institutions of higher education than in prison, on probation or parole, or awaiting trial for a criminal charge. The ratio of African Americans in jail is almost four times the rate of African Americans in the general population.

The gap is reasonable to the extent that it reflects higher rates of criminal activity among blacks. Males are imprisoned, convicted, and punished disproportionately to their population share, but no one considers this disparity unfair. Since the majority of crime is intraracial, failing to prosecute black criminals will often result in inadequate protection for black victims.

For certain crimes, such as homicide, the rate of African American offenders is significantly higher than that of Caucasians. Blacks are significantly more likely to be arrested and prosecuted than whites, despite evidence from social science indicating that black and white crime rates are comparable, as with marijuana and cocaine use. Such racial discrepancies have questionable causes. Evidently, a situation in which whites were preferentially selected for arrest and prosecution despite comparable crime rates would not be acceptable on a political level.

The Relationship Between Substance and Procedure

Additionally, plea bargaining provides a unique viewpoint on the criminal justice system as a whole. The Supreme Court’s interpretation of the Constitution places considerable restrictions on police investigations and guarantees every defendant a fair trial. However, defendants may forgo police restrictions and the right to a trial, and police and prosecutors have nearly unlimited latitude in picking targets for inquiry and prosecution. The system’s defining characteristics are not due process and equal protection, but rather waiver and discretion.

If defendants were unable to waive their rights, the Constitution would oblige the system to dedicate significantly more resources to the judicial process. If prosecutors lacked the power to drop and add charges, the state would be unable to provide an incentive for defendants to forgo their rights. Because the courts have put broad constitutional constraints on criminal process while leaving the substance of criminal law practically unregulated, discretion and waiver have encouraged politicians to authorize very punitive sentences. Because prosecutors have discretion not to file every charge supported by the evidence, legislators who pass draconian punishments are aware that very few offenders will get the maximums allowed by law. In turn, lengthy possible maximum penalties provide the prosecutor with considerable leverage in plea talks.

In theory, both waiver and discretion are entirely defendable. In practice, they have provided us with not one but two criminal justice procedures. In one system, the accused enjoys the constitutionally guaranteed rights. This system is restricted to individuals who are aware of their legal rights and have the financial means to assert them. As discretion is often not applied to target these individuals, this approach is rarely utilized. The alternative system tolerates pressures that actually compel the majority of suspects to renounce their rights. Typically, defense counsel does not enter the process until after the police have concluded their investigation. Once counsel is present, defense attorneys collaborate with prosecutors to negotiate a suitable plea in a setting where the prosecution mainly dictates the terms of trade. The right to trial is generally utilized by the defense as a bargaining chip against the prosecution’s capacity to unilaterally establish the seriousness of the accusations.

A sincere perspective on the procedure does not necessitate cynicism. If defendants were unable to waive their rights, these rights would soon be drastically reduced. If prosecutors were required to file every case supported by the evidence, lawmakers would be driven to alter the substance of criminal law or pay billions of dollars for prisons. The current system enables society to maintain a robust set of procedural safeguards that could shield sophisticated defendants from politically motivated charges. Waiver reduces to a reasonable minimum the expense of these measures in terms of crime control.

The role of wealth in deciding the type of justice provided to various defendants is definitely worrisome, but it is difficult to see how this role might be abolished so long as individuals have the freedom to use their own money to defend themselves against criminal charges. By increasing the floor below which justice for the poor cannot fall, society could do much more to improve the process and minimize the inequality between the rich and the poor. This would necessitate allocating greater resources, mostly but not exclusively for indigent defense. The political will for such measures has not yet materialized.


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