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.