Future American Court Issues: Plea Bargains, Nullification, and Restoration

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

By C. J. Oakes

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Courts have undergone many changes over the course of American History.  Early colonists established simple, town-hall courts that served simple lifestyles; the framers of the Constitution established a hierarchy with a Supreme Court at the top; western plains-folk meted out swift justice according to common-law rules at the hands of such figures as Judge Roy Bean (Meyer & Grant, 2003).  Over time, the American Court system has created divisions for the sake of both efficiency and effectiveness.  In addition, the system has developed in a hodge-podge manner leading some to question whether it could be rightfully termed a system (Robinson, 2009).  Because two competing schools of thought exist within the Criminal Justice and by way of extension, the Court system, many have become jaded to the idea that justice can prevail in America.

As the American Court system continues to evolve in the 21st Century, many interrelated issues have arisen that must be dealt with effectively if the Courts in America are to survive into the next century (Robinson, 2009).  The popular movie Law-Abiding Citizen brought the issue of Plea Bargains into public view as never before; Nullification, once a tradition has been virtually banned by the Courts but is making a comeback; the belief that the system must do more to help victims is gaining momentum.  A brief look at the current court structure can help in understanding why this is the case.  In addition, it should be remembered that the two competing schools of thought, the Crime Control Model and the Due Process Model are largely responsible for the constant shifting, and ensuing problems, of the Courts.

America’s Court Structure

The current structure of the Courts in America evolved according to the needs of society.  As the nation grew and became more technologically advanced, the need for specialization caused necessary divisions.  As a result, most cities have both trial and appellate courts and these are arranged in hierarchal fashion.  Trial courts hold the first jurisdiction over cases and appeals courts only become involved when a case must be examined by a higher court.  This became necessary because the United States Supreme Court could not possibly have handled all such cases as the nation grew; intermediate courts are necessary to filter out all but the most controversial of cases (Meyer & Grant, 2003).

In addition, family courts, civil courts, and drug courts (among others) were all eventually added to further divide the workloads and make the issuance of justice smoother.  Various concepts were added to or removed from the system; these are a large reason the courts are in danger today.  For instance, plea bargaining was added to increase efficiency and gain quick, cost-effective victories over guilty persons; nullification was removed to prevent uneducated jurors from releasing clearly guilty persons; entering the fray, the Victims Rights Movement is revising an ancient tradition (Beloof, 2005).

Future Issues for Courts

Perhaps no single issue will affect the court system more than Victims Rights, which is tied very closely to the concept of Restorative Justice.  This is an ancient concept with roots in both Judeo/Christian teachings and Pagan as well.  For the modern world, it is a fresh idea.

The American ideal of justice is based largely on the concept that a defendant is to be considered innocent until proven guilty.  Historically in America that ideal failed until the Supreme Court under the guidance of Earl Warren began to rule in behalf of the rights of defendants.  However, as humans tend to take anything to extremes, the ensuing legal mess whereby criminals began to be released for technicalities caused subsequent Courts to reverse and dilute the standards established.  The situation in America has become such that anyone with a good enough lawyer, meaning, enough money to buy the best, is fairly certain to elude justice; those without such means are doomed (Zalman, 2008).

Adding to this, the idea of plea bargains enables Prosecutors the ability to ensure that those clearly guilty will receive some kind of penalty while saving the public the expense of a formal trial.  Unfortunately, many unscrupulous District Attorney’s have used this as a means of padding their record to show the voting public how effective they are in the job.  As a result of these, the public has become jaded to the notion of plea bargaining.  The movie, Law-Abiding Citizen highlighted the flaws in this concept such that the public is crying for Victims Rights and restorative practices (Richards, 2009).

Last, it is generally recognized that a defendant also can be a victim, though of the system.  Plea bargains only benefit guilty persons; when someone is innocent, but forced to plea the case, justice is not served, but bastardized.  In addition, when a defendant acts in a way that the public approves, but the law penalizes, nullification is the historic means by which the jury can send the message.  During the last 20 to 30 years, this concept has been systematically suppressed by the Courts and unscrupulous Prosecutors, but appears to be making a comeback through the Victims Rights and Restorative Justice Movements (Waller, 2009).

Future Court Management

As the demand for Victims Rights continues to gain momentum, the courts are faced with a dilemma.  As part of the Restorative Justice movement, the concept applies not only to victims and offenders, but also the whole of society as well.  In other words, short of a complete restructuring of society, proposals such as a Victims Rights Amendment would do little to no good in ensuring that justice is done.  Courts of the future will be faced with the choice of either protecting victims or protecting defendants but not both.  Adding to the problem, plea bargains will continue to prevent justice for any, for the innocent pay a higher cost than justice demands whereas the guilty a lesser (Richards, 2009).

From all appearances, the Victims Rights movement does hold the potential to provide justice to those guilty of serious crimes, but the current trend is to apply this in minor offenses; Richards (2009) argues that this model is not useful in such cases.  For instance, in the case of a victimless drug crime, a Victims Rights Amendment would be useless and a hindrance to the restoration of the defendant and society (Beloof, 2005).

This movement appears to be nothing more than a feel-good measure with little potential to ensure justice, but potential to further clog an already stifled court system; it is a simple solution in which simplicity is impossible.

Likely Impact of Victim Rights Laws

Although a Victims Rights Amendment and subsequent laws will likely have little positive impact on the court system in America, many are suggesting that this will add another layer of professional expertise:  Victims Rights Advocates.

Whereas such an additional layer will likely become necessary, whether these will be a positive addition to the system or not is a matter of speculation.  For instance, if these are paid for by the tax-payers, the increased demand for revenue ala increased taxation will surely cause many to cry foul.  If, however, these are funded by private citizens, these simply add yet another inequality based on finances; such inequalities would provide only further proof to those who argue that justice in America is for sale (Muraskin & Roberts, 2009).  Hence, regardless of how such advocates are funded, detractors from either side of the issue will be provided with ample ammunition to attack an already fragile justice system.  Regardless of how it is viewed, the likely impact of Victim Rights laws cannot be good for the Court system.


The issues facing Courts in America are numerous, but the three mentioned here highlight not only the complexity of a system in sore need of an overhaul but also why care is needed in proceeding ahead.  A song once said that only fools rush in and these issues highlight the truth of that.  American Courts have a need to balance the demands of justice while appeasing an ever-shifting public opinion.  This is no small task, but considering the complexities of the current system and society in general, the task will likely only become more difficult over time.  Whether the American Court system can survive the next popular wave known as Victims Rights or not remains a matter for fortune-tellers and palm-readers.

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  • Beloof, D. E. (2005). The Third Wave of Crime Victims’ Rights: Standing, Remedy, and Review.  BrighamYoungUniversity Law Review. 2005 (2), 255-365.
  • Meyer, J. F.; Grant, D. R. (2003). The Courts in Our Criminal Justice System.  Upper Saddle River, NJ. Pearson/Prentice-Hall.
  • Muraskin, R., & Roberts. A.R. (2009). Visions for change: Crime and justice in the twenty-first century (5th ed.). Upper Saddle River, NJ: Pearson/Prentice Hall.
  • Richards, K. (Nov2009). Taking Victims Seriously? The Role of Victims’ Rights Movements in the Emergence of Restorative Justice.  Current Issues in Criminal Justice. 21 (2), 302-320.
  • Robinson, M. B. (2009). Justice blind? Ideals and realities of American criminal justice (3rd ed.). Upper Saddle River, NJ. Pearson/Prentice Hall.
  • Waller, B. N. (2009). You decide! Current debates in criminal justice. Upper Saddle River, NJ.  Pearson/Prentis Hall
  • Zalman, M. (2008). Criminal Procedure: Constitution and Society. (5th ed.). Upper Saddle River, NJ. Pearson/Prentice Hall.

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