Monday, May 10, 2010

Plea Bargaining

Written for my Psychology and the Law class:

“You should watch this,” said the middle-aged lady leaning against the wall outside the door to the courtroom. “It should be good.” Pointing at a tall, blond woman standing in the corner, she continued, “That woman ruined my life. I want to see her go to jail. I want to see them wreck her life.”

At the sentencing hearing inside the courtroom, Susan Cantin and her lawyer pleaded nolo contendere to two misdemeanors stemming from the theft of $107,512 from Amity Regional School District student activity accounts. During her time as a secretary at Amity, Cantin frequently altered checks and deposited them into her own bank account instead of paying vendors for items such as yearbooks. Her attorney, William F. Dow III of New Haven, negotiated a plea bargain that allowed her to plead no contest in exchange for a suspended prison sentence with three years’ probation in addition to 100 hours of community service. Since her arrest last year, she has paid back all but $11,000 of the stolen funds. During the sentencing that immediately followed the no contest plea, the judge explained that Cantin must repay the remaining $11,000 by April 2012 or else be subject to a violation of probation charge, which would result in the three-year suspended prison sentence.

What made the no contest plea and sentencing particularly interesting to observe was the presence of the woman who had advised me outside the courtroom to sit in on this case. I soon discovered that this woman sitting behind me was Ann Celotto, another former Amity School District secretary who had been fired in 2005 after money that was supposed to be deposited in the school accounts vanished from the main office. Last October, Celotto lost a lawsuit against the school district claiming she was made the scapegoat for others’ negligence. According to Celotto, Cantin’s name was originally not submitted to the police as an additional person who had access to the main office safe because Cantin was being protected by the principal and superintendent. Cantin was eventually arrested when money continued to disappear from the office, even after Celotto was fired. Celotto argued in her lawsuit that her reputation was unfairly tarnished and that she suffered emotionally as a result of the crimes and negligence of others.

After the sentencing of Cantin, Celotto was fuming outside the courtroom. “There’s no justice,” Celotto said to a newspaper reporter. “I’m just really disgusted. She should have done jail time for what she did and what I went through.” Turning to me and two other students, Celotto grimaced and then continued, “That’s William Dow,” pointing at the defendant’s lawyer. “He’s really good.” She then mentioned that we should look up not only Susan Cantin’s case but also her own lawsuit in online archives. “It’s all there. Just type in my name. C-e-l-o-t-t-o.”

Despite the well-intentioned design of the plea bargaining process, the often negative impression of plea bargaining has a strong influence on the way American citizens view the criminal justice system. As highlighted by the visibly upset reaction of Celotto at Cantin’s trial, plea bargaining may result in sentences that are not considered commensurate with the scale or degree of an offense. Indeed, Cantin’s sentence effectively amounts to little more than having to return the funds she stole from Amity. The judge reminded Cantin and her attorney that, without the plea bargain, Cantin would have faced up to two years in jail and an additional $6,000 in fines. Compared to the prospect of a two-year-long jail sentence, Cantin does seem to have received a relatively light sentence for her misdemeanor of larceny.

While the plea bargain was mutually beneficial for both Cantin and the prosecution—she received a light sentence, and the prosecutor’s work was expedited—there are several components of Cantin’s case that epitomize many of the problems with the current U.S. plea bargaining system. One major area of concern is the motivation of prosecutors to plea bargain:  because trials are much more time-consuming than plea bargains, prosecutors have a strong incentive to offer concessions in exchange for a no contest plea. In addition, prosecutors’ salaries are not directly related to the number of cases handled or their outcomes, so self-interested prosecutors may not invest enough time in plea bargain cases, in which more work and less readiness to offer generous concessions might lead to heavier sentences that more accurately reflect the gravity of defendants’ offenses. A related concern is the importance to prosecutors of win-loss statistics. Due to the fact that this metric is widely used to judge a prosecutor’s effectiveness, prosecutors have additional incentive to pursue plea bargains. In effect, because the statistic of conviction matters more than the resulting sentence, prosecutors may prefer the certainty of plea bargains to the uncertainty of adversarial trials. This tendency is further exacerbated when the prosecution believes its evidence is weak or insufficient.

The appeal of plea bargaining to prosecutors has resulted in a set of tactics that further skew the criminal justice system. One procedure involves “overcharging” defendants with a relatively large number of offenses in order to induce cooperation toward a plea bargain. By charging a defendant with more serious crimes than they could likely prove at trial, the defendant may be falsely led to believe that he is receiving a lenient bargain. Research using role-playing procedures has confirmed that this strategy is quite effective (Gregory, Mowen, & Linder, 1978). Indeed, Susan Cantin originally faced 19 felony charges before plea bargaining, which reduced her charges to two misdemeanors.

Furthermore, the current plea bargaining mechanism has become retaliatory against those wishing to exercise their right to trial by jury. Chief Judge William Young of the Federal District Court in Massachusetts filed an opinion that summarizes and criticizes this inconsistency:

Evidence of sentencing disparity visited on those who exercise their Sixth Amendment right to trial by jury is today stark, brutal, and incontrovertible. Today…that disparity has widened to an incredible 500 percent. Criminal trial rates in the United States are plummeting due to the simple fact that today we punish people severely simply for going to trial. It is the sheerest sophistry to pretend otherwise. (Lynch, 2003)

This 500 percent disparity, which effectively translates to the difference between a four-year sentence from a plea bargain and a 20-year sentence from a trial by jury, violates our norms of distributive justice. Does cooperation with the prosecution somehow justify a 500 percent disparity in sentencing? Each defendant, after all, has the right to deny charges, but in the case he is found guilty, the focus on the sentencing should be on the nature of the crime committed rather than the defendant’s decision to be tried before a jury of his peers. Thus, by favoring defendants who choose to plea bargain rather than go to trial, sentencing disparity seems to provide another avenue of criticism of the plea bargaining process and the inequities it perpetuates within the criminal justice system.

In some ways, Susan Cantin’s plea bargain case is not terribly alarming, despite the leniency of her sentence. She has paid back nearly all the money she stole during her time as secretary at Amity Regional School District and is expected to pay the remainder shortly. In addition, she has been fired from her job and lost all retirement benefits. Additionally, Cantin has no prior criminal record, and it seems unlikely that she will continue to pose a threat to society.

Nevertheless, more subtly disconcerting was Ann Celotto’s comment that William Dow, Cantin’s lawyer, is apparently known for his skill. Inequalities stemming from economic differences are an unavoidable fact in many facets of the law, but the variability of defense attorneys’ skills seems especially salient in the context of plea bargaining’s intricacies and opaqueness. Because much of the plea bargaining is not transparent and, furthermore, is mostly between the prosecutor and defense attorney rather than before an impartial jury, the experience and ability of the defendant’s lawyer arguably play a more important role than in conventional trials. As a result, many critics of plea bargaining echo Celotto’s suggestion that the process unfairly favors individuals willing and able to pay for the most experienced defense attorneys.

In his review article “Plea Bargaining Outside the Shadow of Trial,” Professor Stephanos Bibas proposes a number of solutions that would alleviate some of these negative aspects of plea bargaining. For example, he suggests that fixed hourly rates, rather than fixed salaries for public defenders, could help offset the current disincentive to invest sufficient time and energy defending each case. Bibas also criticizes the uncertainty of indeterminate sentencing and recommends an expanded role for sentencing guidelines and statutes. He argues that, despite their imperfections, “Guidelines quantify both the size of the range and, in the federal system, the discount for pleading guilty” (Bibas, 2004). The predictability and transparency of sentencing guidelines would diminish uncertainty for both prosecutors and defense attorneys while simultaneously narrowing the disparity between plea bargain sentencing and trial sentencing.

Despite its shortcomings, plea bargaining serves a critical purpose in the legal system and is intended to be mutually beneficial for the defendant and the state, but the need for reform of the current plea bargaining system is particularly urgent and relevant in light of the importance of procedural justice and transparency for victims and others affected by any offense. Of course, the focus of the U.S. criminal justice system lies between the defendant and the state, but the importance of long-term justice and public perception of the judicial system should not be overlooked. In the case of Susan Cantin, her actions affected not only herself and the school district’s accounts but also individuals such as Ann Celotto. In addition to filing a lawsuit against the school for the emotional damage she suffered, Celotto was present at the sentencing hearing because she wanted to feel that justice had been served. Whether or not one considers Cantin’s sentence distributively just, perhaps even more significant in terms of the legitimacy of the justice system is the opaque and uncertain manner in which plea bargains are negotiated. Reforming the plea bargaining process, such as with Bibas’s proposals, could go a long way in improving the perceptions of individuals such as Celotto of criminal justice and thereby solidify the authority and legitimacy of our legal system.


Bibas, S. (2004). Plea bargaining outside the shadow of trial. Harvard Law Review, 117(8), 2469-2545.

Gregory, W., Mowen, J., & Linder, D. (1978). Social psychology and plea bargaining: applications, methodology, and theory. Journal of Personality and Social Psychology, 36(12), 1521-1530.

Lynch, T. (2003). The Case against plea bargaining. Regulation, 24-27.

Tinley, James. (2010, April 17). Ex-amity secretary avoids jail in $107g theft. New Haven Register.