by Xi Lin

Created on: May 26, 2008

The function of any justice system must be by definition to serve justice to all individuals. Hence the only standard in which to evaluate whether or not plea bargaining in exchange for testimony is just or unjust is distinguishing innocence from guilt. There are three independent reasons for this:

1. Without a clear delineation between the guilty and innocent, the incentive to be innocent completely disappears and all social order is lost. Frank Easterbrook explains: "as the number of convictions falls, it becomes more important that each case be decided accurately. This is so because the level of deterrence is the difference between the anticipated consequences of obeying the law and the anticipated consequences of violating the law. When adjudications are not accurate, this difference falls. [p]enalties may fall on law abiders, and thus there is less reason to obey the law and abjure the gains of crime. A law penalizing any person found in the vicinity of a bank at the time of a robbery consequently would be a poor deterrent to robberies."

2. Since justice is giving due and innocents by definition are not due any harm then distinguishing innocents from guilty is necessary for justice.

3. Innocents must be confident that they will not be convicted in order for society to function at all. Stephen Schulhofer argues: It is critical that the moral force of the criminal law not be diluted by a standard of proof [or a procedure for conviction] that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact finder of his guilt with utmost certainty."

Plea-bargaining uniquely hides lawyer inadequacies, thus causing more innocent convictions. Schulhofer writes: Prosecutors operate under numerous day-to-day pressures to pursue [personal] objectives other than that of the public's desire for optimal deterrence. Their goal may be to [such as] enhance[ing] their personal batting average[s,] , to avoid a potentially embarrassing loss in a particular case, to gain credit for a dramatic trial victory, to cultivate good relationships with influential private attorneys, or simply to avoid staying too late at the officeConscription of unwilling attorneys, low flat-fee compensation, low hourly rates, low fee caps, and heavy caseloads within public defender offices

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