Plea Bargaining

Plea bargaining is the process by which the parties in a criminal case settle a case before trial. As the term suggests, it is a negotiation between the prosecutor and the defense attorney concerning whether, and if so the conditions under which, the defendant will agree to plead guilty (or sometimes ‘‘no contest’’ through a plea of nolo contendere) and thus waive the right to contest the charges at a trial. Although plea bargaining can cover a number of issues, most negotiation centers on (1) which charges, if any, the prosecutor will reduce or dismiss; (2) which charges the defendant will admit to; and/or (3) the sentence that the parties will recommend to the judge.

Notwithstanding the constitutional guarantee of a trial in every criminal case, over 90 percent of all criminal cases in the United States are resolved by a guilty plea. Whether this is good or bad has been long debated, but the reasons for the phenomenon are clear. First and probably foremost is necessity. The courts would soon be overwhelmed if every criminal case had to be tried. Formal plea procedures require very little of a court’s time, typically less than an hour. In contrast, a jury trial even of a simple case ordinarily takes several hours at a minimum, and trials of complicated cases can last weeks, even months. Absent a dramatic increase in judges, courtrooms, and support staff, plea bargaining is a permanent part of the system.

Beyond necessity, there are systemic and individual benefits that flow from guilty pleas. For both parties, a guilty plea provides certainty. For the defendant, a trial may result in an acquittal, but it may also end with a conviction bringing substantially greater punishment than that resulting from a guilty plea to less serious charges accompanied by a prosecutorial promise to seek a lesser sentence. A defendant who pleads guilty can accept responsibility (perhaps causing the judge further to reduce the punishment) and can conclude the matter much earlier than if the case is tried. For the prosecutor, beyond avoiding possible acquittals, guilty pleas permit focusing limited trial resources on fewer cases. More controversially, plea bargaining provides an opportunity for prosecutors— through charging and Sentencing concessions—to secure the cooperation of defendants as witnesses against other criminal defendants in cases that might be far more difficult or impossible to prove without such cooperation.

In view of the high percentage of criminal cases resolved by guilty pleas, it is perhaps surprising that there is very little formal regulation of the pleabargaining process. While criminal trials are governed by a complex set of rules designed to protect a defendant’s rights, the system presumes that the mutuality of advantage and risk that informs parties in plea bargaining will assure an acceptably fair result. What constitutional limits there are flow from the right to a trial and the right to effective assistance of counsel.

Before a guilty plea can be accepted, the judge must be assured in open court that there is sufficient evidence supporting each charge; that the defendant has voluntarily decided to waive the right to trial and its associated protections; that in making this decision the defendant has been informed of and understands these trial rights as well as the consequences of the guilty plea; and that the defendant is satisfied with the lawyer’s advice. The parties must also inform the judge of the plea agreement— usually some reduction of charges, dismissal of charges, and/or limitation of Sentencing recommendation—and the judge then decides whether to accept the agreement in the interests of justice. Other than perhaps to indicate to the parties why a rejected plea agreement is not acceptable, the judge plays no part in the bargaining process.

Plea bargaining is thus left to the prosecutor and the defendant, ordinarily represented by counsel, and it is principally up to the profession to regulate the process. The American Bar Association has promulgated standards for plea bargaining, and the states’ respective rules of professional conduct have provisions applicable to plea bargaining. These rules and standards are designed to assure, as much as possible, a fair process in which the defendant is able to make the kind of informed and voluntary plea decision on which the system’s confidence in the process rests. Thus, in the course of plea discussions, neither party may make false statements to the other.

The prosecutor may not withhold from the defendant information otherwise required to be disclosed and may not seek to gain bargaining leverage by bringing charges unsupported by the evidence or threatening to bring further charges. Defense counsel may not initiate plea bargaining without the consent of the defendant and must ensure that the defendant is able to make an informed decision concerning a plea. Defense counsel must fully investigate the case and communicate the results to the defendant, must keep the defendant informed of the plea discussions, and must provide advice to the defendant in a manner that permits the defendant to make a rational, fully informed decision about whether to plead guilty or go to trial.

Notwithstanding these protections and plea bargaining’s ostensible benefits, critics doubt its fairness. By design, plea bargaining reduces a defendant’s exposure to punishment. While this provides a benefit to a defendant who pleads guilty, some argue that it punishes a defendant who asserts the right to trial and that it results in uneven treatment of defendants similarly situated. Some believe that, particularly when high mandatory sentences are involved, the process is heavily skewed in favor of the prosecution, leaving a defendant little choice but to accept the offered bargain. Also, when the result of a plea bargain is an agreement by a defendant to testify against another, some view this as little better than a bribe. Nevertheless, no one has yet suggested a viable alternative to plea bargaining. There are simply too many criminal cases to try every one, and thus reform is aimed principally at curbing the excesses and abuses of plea bargaining, not its abolition.

ARTHUR LEAVENS

References and Further Reading

• ABA Standards for Criminal Justice—Pleas of Guilty, 3rd ed. 1999.
• Easterbrook, Frank, Plea Bargaining as Compromise, Yale Law Journal 101 (1992): 1969–78. LaFave, Wayne, Jerold Israel, and Nancy King. Criminal Procedure, 4th ed. St. Paul, MN: West, 2000.
• Schulhofer, Stephen, Plea Bargaining as Disaster, Yale Law Journal 101 (1992): 1979–2009.
• Scott, Robert, and William Stuntz, Plea Bargaining as Contract, Yale Law Journal 101 (1992): 1909–1968.
• ———, A Reply: Imperfect Bargains, Imperfect Trials, and Innocent Defendants, Yale Law Journal 101 (1992): 2011–2015.

Cases and Statutes Cited

• Bordenkircher v. Hayes, 434 U.S. 357 (1978)
• Brady v. United States, 397 U.S. 742 (1970)

See also Due Process; Right to Counsel; Sentencing Guidelines