Academic journal article Albany Law Review

When a Plea Is No Bargain at All: Comparing Sentencing Outcomes for Massachusetts Defendants in Non-Sexual and Sexual Crimes

Academic journal article Albany Law Review

When a Plea Is No Bargain at All: Comparing Sentencing Outcomes for Massachusetts Defendants in Non-Sexual and Sexual Crimes

Article excerpt

In the 1980s and early 1990s, a rapid increase in crime rates, particularly for violent offenses such as murder, manslaughter, robbery, aggravated assault, and rape, (1) prompted a public outcry for harsher punishment of offenders. (2) The belief that "tough on crime" policies would reduce violent crime produced several legal changes (e.g., the "three-strikes" law and the increase in minimum sentencing mandates) that have increased the proportion of the population behind bars without a proportional reduction in crime. (3) In fact, research has shown that incarceration has a minimal impact on the prevention of violent crime (i.e., an "incapacitation" effect), even in "punitive" states, in which those convicted are far more likely to be incarcerated, facing longer custodial sentences, or even the death penalty. (4) Some analyses have indicated that each prison-year served prevents 0.30 violent crimes per individual in custody, and the benefits of incapacitation have dropped even further in recent years. (5) Approximately 95% of felony convictions are obtained through guilty pleas. (6) The practice of plea bargaining, protected and reaffirmed by several Supreme Court decisions-most notably Brady [upsilon]. United States, (7) Lafler v. Cooper, (6) and Missouri v. Frye (9)--enables prosecutors to offer a sentencing "discount" to defendants in exchange for a waiver of their right to trial. (10) In violent crime prosecutions, plea bargaining is often seen as evidence of a slipshod attitude toward punishing criminals. (11) While some perceive plea-bargaining as a lax method of prosecuting criminals, others have raised concerns regarding the potential coercion of criminal defendants by prosecutors with unchecked discretion, and whether plea bargains truly produce shorter sentences for criminal defendants. (12)

I. PLEA BARGAINING AND SEX CRIME PROSECUTION

Prosecution of sex crimes remains a slow process, and successful prosecution rates vary widely. (13) Past researchers have determined that in most cases, prosecution takes an average of sixty days to file charges or proceed to indictment, and total case resolution typically takes over six months. (14) Even when sex crimes are resolved through plea-bargaining, cases often take up to a year to reach disposition. (15) Research indicates that in cases of sexual crimes against child victims, rates vary widely, with 46%-82% of cases disposed through guilty pleas. (16)

Prison sentences produced by sex-crime prosecutions are among the least effective measures in preventing reoffending, as compared to treatment and community supervision methods. (17) Some authors further assert that imposition of a prison sentence is the sole significant predictor of chronic sexual offending. (18) Furthermore, increasing the inmate population by one-hundred male offenders correlated with a statewide reduction of two sex crimes per year. (19) Despite this, emotionally-fueled public opinion continues to favor long prison sentences and few re-entry opportunities for sex offenders. (20) Providing reduced sentences or plea offers are rarely in line with public opinion when sex crimes are being prosecuted; rare exceptions include cases involving older, first-time defendants who displayed remorse, (21) and cases where the convicted offender compensated their victim. (22) Judges and prosecutors often echo broader public perceptions of sex offenders as uniquely dangerous to the public or impervious to treatment. (23) Nonetheless, public mistrust in the legal system has historically resulted in a widespread belief that the system is too lenient with sex-crime defendants. (24)

Like other types of defendants, those accused of sex crimes can often negotiate a shorter custodial sentence, a less restrictive custodial placement, as well as shorter or more favorable probation terms in exchange for a guilty plea. In addition, sex-crime defendants can engage in two types of plea-bargaining: (a) plead guilty to a less severe crime than initially charged; and/or (b) plead guilty to a related, non-sexual crime. …

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