The Power to Charge versus Plea Bargaining
Among the officials of the criminal justice system of the United States, the prosecutors are considered to be the most powerful. Their “power to charge” and their authority to initiate plea bargaining agreements enable them to steer criminal cases towards their preferred directions. According to Davis (n.d.), two features combine to render these powers very effective: first, they are both being conducted without the express knowledge of the public; and, second, they are both “totally discretionary and virtually unreviewable.” Between these two powers, however, the “power to charge” is clearly more significant. In fact, it is what gives prosecutors an almost complete control over the process of criminal prosecution. Comparing the two would readily show why this is so.
Plea bargaining is a deal which a prosecutor offers a defendant for the purpose of convincing the latter to plead guilty to the charge/s brought against him or her. Plea bargaining could either result to a lesser charge (charge bargain) or to a lesser penalty (sentence bargain). This practice is supposedly being allowed to reduce the caseloads of the courts because after the defendant pleads guilty, the case does not have to be heard any longer. However, this is not the only reason for its popularity and indispensability. Plea bargaining also enables prosecutors to do away with cases where the guilt of the defendants is already beyond question and spend their time prosecuting more critical cases. Ultimately, advocates of the practice contend, plea bargaining effectively allows government to save precious dollars (Larson, 2000).
The power to charge, on the other hand, refers to the decision of the prosecutor if he or she should or should not charge a suspect. If he or she decides to bring a charge, his or her next decision should be what charge to bring against the suspect. In other words, even if the arresting police officer believes that a suspect has committed a crime, it is the prosecutor who decides if the suspect should be charged at all. This charging decision is left entirely to the discretion of the prosecutor. In other words, the prosecutor’s decision is final and not subject to review (Davis, n.d.).
Comparing the two clearly shows that the charging power is more discretionary because in the case of plea bargaining, the decision to finally enter into a plea bargaining agreement rests on the defendant. If the defendant or his or her lawyer believes that the prosecutor could not establish guilt beyond reasonable doubt, the plea offer could always be rejected. This is not the case with the charging power, however. Even a presiding judge could not question the decision of a prosecutor to charge or not to charge a defendant because the reasoning is that only the prosecutor knows if he or she could make a charge stand up in court (Davis, n.d.).
Moreover, the discretion of the prosecutor is very wide as far as what charge should be brought against a suspect. Davis (n.d.) cites as an example a suspect who was actually caught while in possession of cocaine. This may appear to be a cut and dried case, the suspect having been caught red-handed. This fact notwithstanding, however, the prosecutor is still left with several options. First, he or she could charge the suspect with a simple case of cocaine possession. Second, a charge of “possession with intent to distribute cocaine” could be brought. Finally, the prosecutor may decide to charge the suspect with “distribution of cocaine.” Ordinarily, in many states, the first option is only a misdemeanor offense. When found guilty, the suspect could only spend up to a year in prison. The second and third offenses, however, are both felony offenses both in the states’ and the federal law with minimum mandatory penalties of not less than five years. If a suspect so charged and convicted had previous convictions for similar offenses, he or she could be sentenced to a longer minimum mandatory prison term. If, for instance, the prosecutor decides to charge the suspect only with the misdemeanor offense of cocaine possession, even the presiding judge could not question his or her action regardless of the quantity of cocaine involved (Davis, n.d.).
Since the power to charge is totally discretionary on the part of the prosecutor, it is therefore safe to conclude that it is also open to instances of disparity and cases of discrimination. Records have consistently shown that the poor and the members of the minority groups have always been underserved, underrated, and less privileged. These people, therefore, are always potential victims for such discretionary power.
Davis, A. J. (n.d.). The Power and Discretion of the American Prosecutor. Retrieved March
4, 2009, from http://publications.u-paris10.fr/23/01/AngelaDavisPaper-1.pdf
Larson, A. (2000). How Does “Plea Bargaining” Work? ExpertLaw. Retrieved March
4, 2009, from http://www.expertlaw.com/library/criminal/plea_bargains.html