Plea Bargaining: Necessary Evil Or Unconstitutional Retaliation For Exercising Right To Trial By Jury?

The recent suicide of Aaron Swartz–the 26-year-old computer programmer wiz kid who faced serious charges for allegedly violating the Computer Fraud and Abuse Act–has energized a long running debate about the constitutionality and wisdom of a practice known as plea bargaining. A plea bargain is essentially a contract or agreement between the government and the defendant. The defendant agrees to plead guilty to a less serious charge in exchange for the prosecutor dismissing the more serious charges and/or agreeing to a reduced sentence. Proponents of plea bargaining argue that defendants are presented with a fair choice that they can freely make and that unnecessary trials are avoided, thereby reducing the burden on the courts and the government. Opponents argue that there is nothing fair or free about the choice that plea bargains present.   Defendants are asked to make a choice under duress, with the proverbial gun to their head, because the charges and possible prison sentences they face if they don’t accept the plea bargain are draconian. The result is not the avoidance of unnecessary trials, but the imposition of an unconstitutional penalty on defendants who want to exercise their Sixth Amendment right to a trial.

Although I have been following the story closely, I have not posted anything about it because, as a civil attorney with limited criminal law experience, I haven’t felt that I had anything meaningful to contribute. After thinking about the issue for a while, however, I concluded that I could at least begin to gather in one place relevant articles about the Swartz case specifically, and plea bargaining in general.  This post is the first manifestation of that effort.  I will continue to update it as I do further research.  I hope readers find the articles useful.

I.  Links to articles about the Aaron Swartz case

Prosecutor as Bully (by Lawrence Lessig)

Former Massachusetts U.S. District Judge Nancy Gertner Criticizes Swartz Prosecutors

Carmen Ortiz Strikes Out (Harper’s Magazine)

Swartz Didn’t Face Prison Until Feds Took Over (CNET)

The Criminal Charges Against Aaron Swartz–Part I  and Part II (by Owen Kerr)

The Prosecution of Aaron Swartz: A Reply To Owen Kerr

II.  Links to cases and articles concerning plea bargaining in general

Bordenkircher v. Hayes, 434 U.S. 357 (1978) (The leading U.S. Supreme Court decision on the constitutionality of plea bargaining)

The Prisoner’s (Plea Bargain) Dilemma (Cato Institute 2010)

The Case Against Plea Bargaining (Cato Institute 2003)

In Defense of Plea Bargaining (Cato Institute 2003)

Sentencing Memorandum by William G. Young (Chief Judge, Massachusetts Federal District Court)



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