Plea Bargaining in American Society
Plea bargaining plays a very significant role in the American criminal justice system. It is estimated that approximately 90% of all criminal cases are settled by plea bargain rather than trial by a jury as guaranteed by the Sixth Amendment to the United State Constitution. Throughout this paper, I will discuss what a plea bargain is, benefits of plea bargains, disadvantages of plea bargains, the role of the victim in the plea bargaining process, and recent developments in plea bargaining.
What is Plea Bargaining?
In the American court system, a plea bargain is an agreement between the prosecutor and the defendant in a criminal case in which the defendant agrees to plead guilty to a particular charge in exchange for some leniency or concessions by the prosecutor. There are several ways this can happen. The first way a plea bargain can occur is when a defendant pleads guilty to a lesser or reduced charge that carries with it less punishment than the crime with which he was originally charged. This is called charge bargaining. Additionally, the defendant can plead guilty to one of several charges he or she is facing in exchange for the other charges being dropped or dismissed against him. This is called count bargaining. Finally, the defendant may plead guilty to the original charge filed against him in exchange for a more lenient sentence than one that could be imposed. This instance is known as sentence bargaining. “In some jurisdictions, prosecutors and defendants can work with judges to predetermine what sentence the defendants will get if they accept a plea bargain. In most jurisdictions, however, judges’ role in plea bargaining is limited. For example, federal judges retain final authority over sentencing decisions, and are not bound by prosecutor’s recommendations, even if the recommendations are part of a plea bargain. Similarly, federal judges may not be directly involved in plea bargain negotiations” (Plea Bargain).
One thing that a plea bargain accomplishes is that it allows both the defendant and the prosecution to avoid a lengthy trial. Additionally, for the defendant, it allows the benefit of being assured that he will not be convicted of the more serious original charge or that he will not receive a lengthier sentence than agreed to in the plea bargain.
As stated above, it is estimated that 90% of criminal cases in the American court system are settled by plea bargains. There are several factors that may influence such a high rate of plea bargains occurring in the United States legal system. One factor is the adversarial nature of the American criminal justice system. In the American criminal justice system, the prosecutor and the defense attorney are squarely on opposite sides and the judge is not privy to the majority of the information and evidence that either side has until the trial. This prevents the judge for assessing the strengths and weaknesses of each side’s case. Thus, prosecutors may be more likely to offer a plea bargain when they do not have a strong case; likewise, a defense attorney may be more likely to talk his client into taking a plea bargain if he believes that the prosecutor does have a strong case. Additionally, the lack of compulsory prosecution, or the discretion given to the prosecutor in deciding whether or not to prosecute a case, may lead to plea bargains being offered.
Benefits of Plea Bargaining in American Court System
The costs of a criminal trial can be expensive for the state. A plea bargain gives the state a chance to avoid the costs of a lengthy trial and secure a conviction on a charge related to the crime committed. The costs of presenting evidence, putting on experts, and prepping and cross-examining witnesses, is often expensive and the state must bear the burden of the cost of the trial. In fact, if every case in the state’s courts’ criminal justice docket were to go to trial, it is estimated that the criminal justice system would quickly be depleted of all of its resources. The offering and acceptance of a plea bargain can help spare the state this expense.
Plea bargains also help to give the defendant some assurance as to the penalty that he will face. The outcome of the trial is uncertain. Therefore, a defendant may prefer the certainty of a plea bargain.
Plea bargains can help spare the victim of a crime the anguish of having to sit through a lengthy sometimes graphic trial where the victim may have to hear testimony and be asked questions that will cause him or her to have to relive the crime. A criminal trial can be an emotional time for the defendant that he or she may wish to forgo. Plea bargains allow the state to seek justice without putting the victim through the emotional strain of a trail.
Additionally, plea bargains can be used to gather information or evidence from a defendant who ordinarily would not be forthright with the information. An example of this is murder cases where the victim’s body has not been recovered. The prosecutor will often offer the defendant a plea deal in exchange for the defendant disclosing the location of the victim’s body so that the victim’s family can gain some closure and the victim can receive a proper burial.
Disadvantages of Plea Bargaining in American Court System
One complaint many commentators have concerning plea bargaining is that it involves the defendant giving up rights that are protected by the United States Constitution. These rights are the right to a jury trial, the right against self-incrimination, and the right to confront witnesses against him or her. The Supreme Court has determined, however, that plea bargaining is Constitutional. In the case of Brady v. United States, 397 U.S. 742 (1970), the ruled on the constitutionality of plea bargaining, rejecting a claim that they are unconstitutional. However, there are some limitations on when plea bargains can be accepted in order for them to be constitutional. A year before Brady, the United States Supreme Court ruled in the case of McCarthy v. United States 394 U.S. 459 (1969) that a defendant must enter into a guilty plea voluntarily. Furthermore, a guilty plea can only be accepted if the defendant knew the consequences of what he was doing at the time when he entered into a plea.
One disadvantage of plea bargaining is that some allege that they are coercive. A defendant looking at a substantial amount of prison time, may feel pressure to take a plea deal whether he or she is, in fact, guilty or not. Furthermore, there have been allegations at prosecutors at times threaten the vigorously prosecute and recommend the maximum sentence if the defendant were to forgo taking the plea deal. It is alleged that even judges at times have threatened to impose the maximum sentence at the conclusion of the trial if a defendant turns down a plea offer.
Plea bargains may be used by the prosecutor to obtain a conviction in a case that he was not sure that he had the evidence and witnesses to obtain a conviction in an attempt to maintain a high conviction rate, rather than in the interest of justice, in a particular case. A plea agreement often does not weight the evidence against a defendant in the same way that a court trial does. Therefore, a defendant may not be aware of what the full weight of the evidence that the prosecutor has against him is and may accept a plea deal in instances where there was a substantial likelihood that the defendant could have prevailed at trial.
Additionally, prosecutors and defense attorneys work together on a regular basis. Therefore, the prosecutor may be tempted to offer a plea bargain in exchange for maintaining a collegial relationship with the defense attorney. One the other side of the coin, a defense attorney may be tempted talk a client into taking a plea bargain in a particular case in order to help the defense attorney maintain a relationship with the prosecutor’s office for the sake of his future clients.
Another disadvantage of plea bargaining is that it takes away much of a defendant’s post-conviction relief rights. Defendants convicted at trial are entitled to certain post-conviction relief such as the right to appeal. In instances of plea bargaining, this right is often waived.
In “The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers, Undermine Justice,” author Tim Lynch argues that plea bargaining in its current state is not what most Americans had in mind when they think of the criminal justice system. “Most Americans are under the mistaken impression that when the government accuses someone of a crime, the case typically proceeds to trial, where a jury of laypeople hears arguments for the prosecution and the defense, then deliberates over the evidence before deciding on the defendant’s guilt or innocence” (Lynch, 2011). With 90% of cases in the criminal justice system being resolved by plea bargaining, the aforementioned belief by many Americans is not close to accurate about the United States criminal justice system. The author argues that the concept of plea bargains was not intended to play such a role in the American criminal justice system at the time when the criminal justice system was established. Charge and sentence bargaining was never supposed to replace the jury trial in the American criminal justice system (See Lynch, 2011). One thing that plea bargains accomplish according to Lynch, is that plea bargains effectively remove the jury from equation; therefore, plea bargains allow prosecutors and judges to have a greater influence in the outcome of the case.
Plea Bargaining and the Victim
The article “The Role of Victims in Plea Bargaining” points out that, “Unlike a defense attorney, who only represents the defendant’s interests, the prosecutor represents the state and must do what’s in the best interests of the general public – not just the victim” (Barton, 2012). The article goes on to point out that oftentimes the interests of the state and the victim coincide, but there are times when they diverge. This means that the victim’s need for retribution must be balanced with the state’s need to impose an appropriate punishment, deter others from committing the same criminal acts, and incapacitate the individual criminal actor. Therefore, in the instance of plea bargaining, the victim may not have any say in whether or not the defendant is offered a plea deal or what the stipulations of the plea deal are. However, this is not always the case. Some states allow the victim to have a say I whether or not a plea deal is offered to the defendant. “For example, in New York, the victims of certain felonies have the right to, among other things, be consulted as to their view of the disposition of the case by dismissal, guilty plea or trial. And the court is required to consider the views of the victim or his/her family on discretionary decisions, such as the acceptance of a plea agreement” (Barton, 2012).
The article goes on to state that, in some state, victims’ rights are not adequately protected in the instance of plea bargains. For this reason, some victims’ rights organizations believe that the prosecutor should have to present the plea deal to the victim, get the victim’s position on the plea deal, and offer proof to the court that the victim was informed of the plea deal. Others in the legal field are calling for plea bargaining guidelines to be drafted; these plea bargaining guidelines would include standard plea bargains that could be offered to a defendant in a particular case. Still others believe that the victim should have the right to veto a plea deal.
Plea Bargaining and Recent Developments
The landscape of plea bargaining in the American criminal justice system recently changed a bit when two pivotal cases involving the role of the defense attorney in plea bargaining made it up to the United States Supreme Court. “The Court said in 5-to-4 rulings Lafleur v. Cooper and Missouri v. Frye that criminal defendants have a constitutional right to effective lawyers during the plea-bargaining process. Justice Anthony M. Kennedy wrote for the majority that the Sixth Amendment right to counsel extends to plea negotiations because plea bargaining has become so pervasive in the modern criminal justice system” (Brown, 2012). The court ruling in Cooper gives a defendant who turned down a plea bargain based on the bad advice of an attorney the right to a plea bargain offered. The case of Frye holds that a defendant whose attorney fails to tell him about a plea offer is entitled to that plea offer. Although these two cases focused on the role of the defense attorney in the plea bargaining process, they have some additional significance outside of the role of the defense attorney. “What’s significant about Frye and Cooper is that the court recognized for the first time that defendants have a legitimate interest in plea bargaining offers that they would have accepted – and that courts would have approved. Previously, all the rules have been concerned with questions such as whether the defendant entered his guilty plea voluntarily, or whether the parties both lived up to the promises each made in the plea agreement” (Brown, 2012). The article “Incompetent Plea Bargaining and Extra Judicial Reforms” that appeared in the 2012 issue of the Harvard Law Review discusses the cases of Cooper and Frye and their effects. The author states that these two cases will probably have very little effect on those whose trials have already been adjudicated by the criminal justice system except for in limited instances where the facts almost mirror these cases. However, these cases are likely to have the effect of the prosecutor and the defense attorney putting more thought into the plea bargaining process and in essence ‘bulletproofing’ the plea bargain (Bibas, 2012, p. 152).
Plea bargains, or agreements between the prosecutor and the defendant that the defendant will receive consideration in charges or sentencing in exchange for his pleading guilty to a certain charge, affect 90% of cases in the United States criminal justice system today. There is some advantage of plea bargaining that include: Saving the state money, giving the defendant more assurance as to the sentence he will receive, sparing the victim the emotional strain of a trial, and information gathering from the defendant. There are also some drawback of plea bargaining that include: the waiver of certain right guaranteed by the Constitution, plea agreements to maintain a collegial relationship between the prosecutor and the defense attorney, coercion, and plea bargains offered to maintain a prosecutor’s conviction rate. Furthermore, the victim is often not taken into account when plea deals are struck. However, these deals are necessary for the function of the criminal justice system today; if the 90% of criminal cases that were resolved by plea bargain went to trial the criminal justice system would not be able to operate. There have been some recent changes with two cases going up to the Supreme Court that protect defendants when plea bargains are offered; these cases showed that the Supreme Court recognizes the importance of plea bargains to the American criminal justice system.
Barton, R. “The Role of Victims in Plea Bargaining.” The Crime Report. March 5, 2012.
Retrieved from: http://www.thecrimereport.org/viewpoints/robin-barton/2012-03-the-role-of-victims-in-plea-bargaining
Bibas, S. “Incompetent Plea Bargaining and Extrajudicial Reforms.” The Harvard Law Review.
(2012). Vol. 126:150.
Brown, D. “Brown: Supreme Court recognizes Key Role Plea Bargaining in Criminal Justice
System.” The University of Virginia School of Law. March 26, 2012. Retrieved from: https://www.law.virginia.edu/html/news/2012_spr/plea_bargaining.htm
Lynch, T. “The Devil’s Bargain: How Plea Agreements, Never Contemplated by the Framers,
Undermine Justice” Reason. (July 2011) Cato Institute.
“Plea Bargain.” Legal Information Institute. Cornell University Law School. Retrieved from: