Plea Bargaining

Plea Bargaining is a process whereby a person accused of a crime pleads guilty to a specified charge in return for an agreed‐upon sentence, a sentence recommendation to the judge, or the dismissal or reduction of other charges. Typically, defense counsel and the prosecutor negotiate the charges to be brought. If the bargain pertains to the sentence to be meted out, a judge may also participate unless barred from doing so.

Specific aspects of the process vary greatly from one jurisdiction to another: from a highly adversarial setting to one in which the participants cooperatively seek “substantive justice” and from a court where only charges may be bargained because of mandatory sentencing policies to one that focuses on sentences because they are authorized to be indeterminate for most, if not all, offenses. In other courts, the emphasis is on the contestability of cases. If the facts are undisputed, a guilty plea becomes a foregone conclusion, and only a disposition needs to be negotiated. Within a given court or jurisdiction, the process may vary from case to case depending on the proclivities and the degree of involvement by the major actors: prosecutor, defense attorney, judge, and defendant.

The origins of plea bargaining are obscure. There is evidence that it existed by the middle of the nineteenth century. Although heavy case‐loads and overly crowded prisons are often cited as causes, a more likely explanation is the bureaucratization of the criminal justice system. It conveniently settles cases where guilt is obvious as well as those where proof of all elements of the charge is problematic, thereby lessening risk to both defendant and prosecution. Because nineteenth‐century trials were fast‐paced affairs that disproportionately ended in a guilty verdict, plea bargains were an attractive alternative especially to guilty defendants. By “copping a plea,” they could determine their own fate, rather than leaving it to the not so tender mercies of judge and jury.

Although the frequency of plea bargains in rural areas belies its origin in backlogged courtrooms, today's criminal justice system would certainly collapse without the rapid disposition of most cases. Trials are slow, cumbersome, and long. Prosecutors and defense counsel would require much more time to prepare their cases. Scheduling witnesses would become guesswork. The time between arrest and trial would lengthen greatly. Conviction rates would fall. Court‐appointed attorneys would refuse to serve because fee schedules would be inadequate to compensate them for their time.

Because defendants who plead guilty waive three important constitutional rights—self‐incrimination, jury trial, and the right to confront and cross‐examine one's accusers—the Supreme Court has been called upon to determine the constitutionality of plea bargaining. In Boykin v. Alabama (1969), the Court held that the record must disclose that the defendant voluntarily and understandingly pled guilty. In Brady v. United States (1970), it ruled that the voluntariness of a guilty plea was not vitiated by fear of a heavier sentence following trial, even though that fear was death under a statute that the Court declared unconstitutional subsequent to Brady's guilty plea. And in Santobello v. New York (1971), the Court described plea bargaining as “an essential component of the administration of justice. Properly administered, it is to be encouraged” (p. 260). The Supreme Court has defined the Sixth Amendment's guarantee of “Assistance of Counsel” to mean effective assistance, which seems to entail a modicum of bargaining and negotiation, as suggested in Strickland v. Washington (1984) and Nix v. Whiteside (1986).

The Supreme Court's stamp of approval has overcome some concerns about due process violations. But others remain: coercion, false pleas, and injustice, on the one hand; excessive leniency, reduction of deterrence, and the value of the rule of law as a symbol, on the other. Although plea bargaining prevents the criminal courts from becoming submerged in a sea of cases, it does produce effects that deviate markedly from those of a formal adversarial system in which trial by jury is the norm rather than the infrequent exception. Tasks that theoretically are the responsibility of judges and jurors—the determination of innocence and guilt, and the imposition of sentences—are performed instead by prosecutors and defense attorneys. Because the latter's' primary role is that of advocate rather than decision maker, extraneous considerations may affect the process. Thus, a prosecutor may offer the accused an especially attractive plea in order to avoid disclosure of an undercover witness or where the evidence is weak or tainted, perhaps as the result of an illegal search or an involuntarily induced confession.

On the other side, experienced defendants and attorneys who have learned how to drive sharp bargains will fare better than those with lesser negotiating ability. Unskilled defendants may become chagrined or embittered to learn that their sentences are markedly more severe than those of similarly situated convicts.

The result is a system in which bargaining replaces evidence as the paramount determinant of guilt or innocence. Although plea agreements generally appear on the record, ambiguity clouds the extent to which judges require a factual basis to support them. Administrative pressure on the prosecutor and the economic orientation of the defense attorney drive the system. Guilt is presumed rather than innocence. Features of an assembly line characterize the process rather than those that typify a model of due process.

See also Due Process, Procedural.

Bibliography

William F. McDonald and James Cramer, eds. Plea Bargaining (1980).
William M. Rhodes , Plea Bargaining: Who Gains? Who Loses? (1978).

Harold J. Spaeth