The law of the US is a complex system that contains many levels and is documented in the Constitution, which is considered by the federal government, the Senate, executive branches, and federal judiciary. The unique nature of the American legal system prioritizes common law and precedent, while the roles of juries and judges are also important. At the same time, there are a range of factors, such as offense-specific characteristics, acceptance of responsibility, et cetera, that can affect judges’ decisions. Plea agreements and trial publicity remain the most critical issues that cause controversies in the US legal system.
American Legal System Origins
The US inherited the common law tradition that was practiced by England during the Revolutionary War. Based on the foundations of the English law, including general search warrants and bills of attainder, the US adjusted its system with regard to procedure and substance, also adding several civil law improvements (Calvi and Coleman, 2017). As the heir of common law, the American system adopted the principle of stare decisis, which means that judges can not only apply the law but also make it, yet it is possible only in case of statutory or constitutional provisions’ absence. All the states except Louisiana have accepted reception statutes, and judges can cite pre-Revolution cases when discussing some issues. At the federal level, however, no plenary statutes were enacted, which allows federal courts to create precedents likewise their English predecessors did. Calvi and Coleman (2017) state that, for example, “interpreting the Establishment Clause, the Court breathes life into the words of the Constitution” (p. 12). It is recognized that the Founding Fathers of the US vested this power in Article Three of the US Constitution, which is used by the Supreme Court.
The phenomenon of the judicial review in the US originates from the history of the Constitution and landmark decisions by the Supreme Court. Hylton v. United States (1796) was the first case that comprised challenging the constitutionality of Congress’ Carriage Act, and the judicial review revealed that the tax was unconstitutional (Calvi & Coleman, 2017). It is the responsibility of the Supreme Court to overturn unconstitutional legislation through the examination and decision regarding a treaty, statute, or regulation. It should be emphasized that the Constitution does not contain any explicit definition of the judicial review, while the authority to practice it was deduced from the provisions and structure of this enactment.
Roles of Judges and Juries
In criminal cases, the role of a judge is to administer the function of interpreting the law, which is charged by the Constitution. Many criminal cases can start in one court and move to another before or during the trial. In this connection, judges are assigned the role of managing schedules, hearing motions, and making other related decisions (Ingram, 2018). Most importantly, a judge is expected to become the personification of the criminal law, which requires objectivity, as well as ensuing due process and civil rights. In order to remain rational, judges need to be aware of as many facts as possible since the level of proof should be high to make a correct decision, in which not only validity but also applicability of information should be taken into account (Ingram, 2018). Another vital role of judges is to work in cooperation with the jury, thus guaranteeing unbiased and fair outcome.
Being instructed by a judge regarding its job, the jury should listen to the evidence of the case, understand the facts, and use them to make a decision. In other words, the jury acts as an important, impartial group of people, who check the prosecutorial power. The jury is significant substantively since it incorporates the constitutional right and balances the judicial system, allowing people to have a voice in the field of criminal justice. In addition, the jury prevents oppressive power that can be used by the government, limiting its absolute power to make decisions. Symbolically, the jury represents one of the benefits of the democratic society, in which the intelligence of citizens is considered to be the basis for verdicts. It is also essential that citizens have the opportunity to take part in the process of governing and promote peaceful dispute resolutions.
Factors Restricting the Discretion of Judges
Previously, judges were given the right to full discretion to decide in terms of the criminal justice system. Such practice caused sentence disparities, and today, there is a range of factors that limit judicial discretion. First, the acceptance of responsibility by a defendant, as well as his or her appeal to the jury, reduces the basic offence level (Calvi & Coleman, 2017). This defendant pleads guilty and accepts the role in the crime, which impacts the decision of a judge. The underlying reason for this change is that the government did not waste time and resources to prepare for the trial. More to the point, the defendant’s criminal history also affects a sentence.
The second factor is associated with modifications for obstructions, while any actions can be included in this factor that increases the offense level, which is identified by a judge. Among other actions, giving false statements as well as destroying or concealing documents can be noted. Accordingly, the judge’s discretion is affected by obstruction, and he or she has to reconsider the preliminary sentence. Third, there are offense-specific adjustments, for example, sophisticated offense conduct is often inherent in tax crimes, which increases the offense level. Fourth, a set of regulations are provided for some cases such as recidivism that implies mandatory sentencing according to the law. Human factors can lead to the abuse of discretion, a mistake of a judge, which can be expressed in the failure to make proper comments, interpret the evidence correctly, or avoid bias.
It is considered an axiom that in democracy, a law must be applied consistently, openly, and impartially. The rule of law seems to be the most suitable means to achieve the goals of justice. Apparently, on the basis of this, Bellamy (2016) claims that the existence of discretion implies a different situation since the exercise of discretion is a manifestation of subjective justice, and the application of the rule of law is objective. This conclusion can be regarded as controversial in the legal literature. Some scholars believe that, despite the advantages of the flexibility provided by the exercise of discretion in the application of the rule of law, the subjective element of the discretionary decision-making process may cause different resolutions of similar cases (Bellamy, 2016; Calvi & Coleman, 2017). Thus, it becomes evident that judicial discretion is affected by various factors that should be taken into account in combination.
Plea bargain is a process in which an accused pleads guilty in court in exchange for a less severe punishment or in exchange for another satisfaction of interests. Currently, up to 90% of criminal cases are examined in this order in the US (Kutateladze & Lawson, 2018). The cooperation agreement is concluded between the accused and the prosecutor. According to the Federal Criminal Procedure Rules, a judge is prohibited from participating in the discussion of such a case. In Missouri v. Frey and Lafler v. Cooper, US Supreme Court established that when concluding a transaction with a prosecutor, the accused has a constitutional right to receive effective assistance from a lawyer under the Sixth Amendment to the US Constitution (Crespo, 2018). The opportunity to mitigate punishment is one of the key benefits of plea agreements for the person facing criminal charges.
However, some drawbacks of cooperation agreements should also be identified to better understand their role. It is noteworthy that the prosecutor has the right to use threats to induce the accused person to conclude a deal, but these threats should only be associated with the qualification of the crime and the size of the punishment: this provision was confirmed in Bordenkircher v. Hayes. However, if there are no reasons for a stricter sentence, and the prosecutor still uses threats, this is a violation (Crespo, 2018). If the accused agreed to plead guilty in exchange for the recommendation of the prosecutor with the determination of the minimum penalty for a particular crime, and as a result, the prosecutor does not fulfill this promise, in this case, the constitutional rights of the person are violated. However, if the court does not agree with the prosecutor about the length of the sentence, and if it appoints a more stringent one than was indicated in the recommendation, then the accused cannot report a violation of constitutional law.
Usually, cooperation agreements are used in multi-codefendant cases against the mafia, cartels, or other groups. A low-level participant is offered the agreement to provide testimony against the higher-level persons; for example, in Mexican drug lord “El Chapo.” In fact, plea agreements can be dangerous for a witness, and the special program is expected to protect them. Another form of the cooperation is immunity that grants the right to avoid or limit prosecution (Ingram, 2018). Thus, it becomes evident that plea agreements have both positive and negatives sides, while it would be rather difficult to prohibit them due to their demoralizing effect and crime encouragement. The main reason for difficulties is that it is useful for defense lawyers and prosecutors, allowing avoiding trials.
Insulation from Pretrial and Trial Publicity
In today’s world, the access to information is easy and widespread to the Internet and media presence, which allows people to affect the judges and jury. Many cases rapidly become the subjects of prejudicial publicity, which can impact their resolution. Nicholls (2018) states that some restriction measures can include gag orders or setting limits for the media entrance to courtrooms. Nevertheless, open courts are the integral feature of the American justice system, and defendants have a constitutional right to this. There is the tension between fair trials and pre-trial and media publicity. According to Nicholls (2018), it is not possible to completely insulate jurors from publicity, yet it is considered that the media has little impact on its decisions. In spite of different attempts to keep secrecy, the jurors have access to relevant information.
In cases that are subjected to a high impact of prejudicial publicity, it is assumed to rely solely on a judge. This statement is based on the idea that the elimination of the jury is likely to reduce prejudice and lead to a fair decision (McEwen, Eldridge, & Caruso, 2018). One should also state that the very legislative system of the US need to be adjusted in this case; nevertheless, the identified idea should also be researched in further studies. Even though the jurors are composed from different pools, they cannot be fully impartial, and they cannot be isolated from the impact of publicity (McEwen et al., 2018). It is especially evident in cases when a great number of jurors is included in the pool due to the potential community passion.
To conclude, it should be emphasized that the American legal system is founded on the English law and includes such vital elements as precedent, common law, judicial review, and stare decisis. The role of a judge is to manage the process of trial, instruct the jury, and make the final decision, while the jurors are expected to provide their objective opinion regarding the given case. Among the factors that curtail the discretion of judges, one can enumerate modifications for obstructions, plea agreements, publicity impact, et cetera. While cooperation agreements are viewed as the opportunity to reduce the sentence and avoid trials, they also demoralize the society. Ultimately, it is not realistic to fully isolate the jury from trial and pretrial publicity.
Bellamy, R. (2016). The rule of law and the separation of powers (2nd ed.). New York, NY: Routledge.
Calvi, J. V., & Coleman, S. (2017). American law and legal systems (8th ed.). New York, NY: Routledge.
Crespo, A. M. (2018). The hidden law of plea bargaining. Columbia Law Review, 118(5), 1303-1424.
Ingram, J. L. (2018). Criminal evidence (13th ed.). New York, NY: Routledge.
Kutateladze, B. L., & Lawson, V. Z. (2018). Is a plea really a bargain? An analysis of plea and trial dispositions in New York City. Crime & Delinquency, 64(7), 856-887.
McEwen, R., Eldridge, J., & Caruso, D. (2018). Differential or deferential to media? The effect of prejudicial publicity on judge or jury. The International Journal of Evidence & Proof, 22(2), 124-143.
Nicholls, J. (2018). Open justice and developments in the law on anonymity, access to material and reporting restrictions. Judicial Review, 23(3), 200-224.