PLEA BARGAINING

The process whereby a criminal defendant and prosecutor reach a mutually satisfactory disposition of a criminal case, subject to court approval.

Plea bargaining can conclude a criminal case without a trial. When it is successful, plea bargaining results in a plea agreement between the prosecutor and defendant. In this agreement, the defendant agrees to plead guilty without a trial, and, in return, the prosecutor agrees to dismiss certain charges or make favorable sentence recommendations to the court. Plea bargaining is expressly authorized in statutes and in court rules.

In federal court, for example, plea bargaining is authorized by subsection (e) of rule 11 of the Federal Rules of Criminal Procedure. Under rule 11(e), a prosecutor and defendant may enter into an agreement whereby the defendant pleads guilty and the prosecutor offers either to move for dismissal of a charge or charges, recommend to the court a particular sentence or agree not to oppose the defendant's request for a particular sentence, or agree that a specific sentence is the appropriate disposition of the case. A prosecutor can agree to take any or all of these actions in a plea agreement. Under rule 11(e), plea bargaining must take place before trial unless the parties show good cause for the delay.

Generally a judge will authorize a plea bargain if the defendant makes a knowing and voluntary waiver of his or her right to a trial, the defendant understands the charges, the defendant understands the maximum sentence he or she could receive after pleading guilty, and the defendant makes a voluntary confession, in court, to the alleged crime. Even if a defendant agrees to plead guilty, a judge may decline to accept the guilty plea and plea agreement if the charge or charges have no factual basis.

The judge does not participate in plea bargain discussions. Prosecutors have discretion whether to offer a plea bargain. However, a prosecutor may not base the determination of whether to negotiate on the basis of an unjustifiable standard such as race, religion, or some other arbitrary classification.

Plea bargaining can be advantageous for both prosecutors and defendants. Prosecutors may seek a plea bargain in certain cases to save valuable court time for high-priority cases. Prosecutors often are amenable to plea bargaining with a defendant who admits guilt and accepts responsibility for a crime: plea bargaining in this context is considered the defendant's reward for confessing. Prosecutors also accept plea bargains because they are evaluated in large part according to their conviction rates and all plea bargains result in a conviction because the defendant must plead guilty as part of the plea agreement.

Plea Bargaining: A Shortcut to Justice

Plea bargaining is widely used in the criminal justice system, yet seldom praised. Plea agreements are troublesome because they are something less than a victory for all involved. Prosecutors are loath to offer admitted criminals lighter sentences than those authorized by law. Likewise, most criminal defendants are less than enthusiastic over the prospect of openly admitting criminal behavior without the benefit of a trial. Despite the reservations of the parties, plea agreements resolve roughly nine out of every ten criminal cases. The sheer numbers have caused many legal observers to question the propriety of rampant plea bargaining.

Some critics of plea bargaining argue that the process is unfair to criminal defendants. These critics claim that prosecutors possess too much discretion in choosing the charges that a criminal defendant may face. When a defendant is arrested, prosecutors have the authority to level any charge if they possess enough facts to support a reasonable belief that the defendant committed the offense. This standard is called probable cause, and it is a lower standard than ability to prove a charge beyond a reasonable doubt, the standard that the prosecution must meet at trial. Thus, for leverage, a prosecutor may tack on similar, more serious charges without believing that the charges can be proved beyond a reasonable doubt at trial.

Because prosecutors are evaluated in large part on their conviction rates, they are forced to try to win at all costs. According to some critics, prosecutors use overcharging to coerce guilty pleas from defendants and deprive them of the procedural safeguards and the full investigation of the trial process.

For example, assume that a defendant is arrested for trespassing. Assume further that the trespass was an honest mistake and that the defendant was, by happenstance, on the property of a former spouse. In addition to trespassing, the prosecutor may charge the defendant, on the facts, with stalking and attempted burglary. The prospect of facing a trial on three separate criminal charges may induce the defendant to plea bargain because the potential cumulative punishment for all three crimes is severe. Ultimately the defendant may plead guilty to, and forfeit the right to a trial on, the trespassing charge, the only charge that stands a chance of being proved beyond a reasonable doubt. Such a plea bargain, claim some critics, is an illusory bargain for criminal defendants.

The practice of overcharging is impermissible, and courts may dismiss superfluous charges. However, courts are reluctant to prevent the prosecution from presenting a case on a charge that is supported by probable cause. Prosecutors have discretion in plea bargaining, and they may withdraw offers after making them. A defendant is also free to reject a plea bargain. In many cases, where a plea bargain is withdrawn or rejected and the case goes to trial, the defendant, if found guilty, receives punishment more severe than that offered by the prosecution in the plea bargain. This has been called the "trial penalty" and it is another source of criticism of the plea bargain.

A defendant who goes to trial and is found guilty of a serious felony receives, on the average, a prison sentence that is twice as long as the sentence offered in a plea bargain for the same offense. A defendant cannot be penalized for pleading not guilty and going to trial, but the U.S. Supreme Court has not held that it is impermissible to punish defendants with sentences that are longer than those offered in plea agreements. When overcharging and the trial penalty are combined in the regular practice of plea bargaining, defendants have little choice but to plead guilty, and virtually every criminal act may be disposed of without a trial. This, according to some critics, is a perversion of the criminal justice system.

Other critics focus on the benefits that plea bargaining gives to defendants. They argue that plea bargaining softens the deterrent effect of punishment because it gives criminal defendants the power to bargain for lesser punishments. These critics note that experienced criminals are more likely to receive favorable plea bargains because they are familiar with the criminal justice system. According to these critics, plea bargaining subverts the proposition that a criminal should receive a punishment suited to the crime.

Critics of plea bargaining tend to be either scholars or crime victims. Scholars complain of prosecutorial coercion, and crime victims decry the lighter sentences that plea bargaining produces. Defenders of plea bargaining tend to be the players in the system. These are judges, prosecutors, criminal defendants, and criminal defense attorneys. The majority of these persons accept plea bargaining as a necessary tool in the administration of criminal justice. They point out that critics of plea bargaining have no solution to the lack of judicial resources. Without increased funding for more courts, judges, prosecutors, and court employees, plea bargaining is a necessity in most jurisdictions.

In response to the overcharging argument, supporters of plea bargaining note that the prosecutor's discretion in charging is a concept deeply ingrained in U.S. law, and for good reason. A prosecutor is not required to decide the case before trial. Instead the prosecutor is required to press charges based on the facts and to present evidence to support the charges. If there is no reasonable interpretation of the facts to support a certain charge, the charge will be dismissed. The judge or jury makes the final decision of whether the evidence warrants conviction on a certain offense. Defendants may receive harsher sentences upon conviction at trial, but in any case the sentence must be authorized by law. Thus, procedural safeguards effectively protect criminal defendants from the perils of overcharging.

Proponents of plea bargaining also contend that both defendants and society reap benefits. Defendants benefit because both the defendant and prosecutor help to fashion an appropriate punishment. Society benefits because it is spared the cost of lengthy trials while defendants admit to crimes and still receive punishment. Although the punishment pursuant to a plea agreement is generally less severe than that imposed upon conviction after a trial, the process nevertheless produces a deterrent effect on criminal behavior because prosecutors are able to obtain more convictions. Each conviction places a defendant under the super-vision of the criminal justice system, and this decreases the defendant's freedom. Moreover, subsequent convictions after a guilty plea can be punished more harshly because defendants are punished in large part according to their criminal history.

Criminal defendants may also benefit from plea bargaining. Plea agreements provide quick relief from the anxiety of criminal prosecution because they shorten the prosecution process. Furthermore, plea agreements usually give defendants less punishment than they would receive if they were found guilty of all charges after a full trial. For example, assume that a defendant has been charged with one count of driving under the influence and one count of possession of a controlled substance with intent to sell. If the defendant goes to trial and is found guilty on both counts, he could receive a prison sentence of several years. However, if he agrees to plead guilty to the charge of possession with intent to sell, the prosecutor may drop the driving-under-the-influence charge. The net result would be a slightly shorter prison sentence than would result with inclusion of the other count. As part of the same deal, the prosecutor also may agree to reduce the remaining charge in exchange for something from the defendant. For example, the prosecutor may ask the defendant to testify against the supplier of the drugs or to build a case against the supplier by acting as an agent for the police. A reduced charge, such as from possession with intent to sell down to simple possession, would further decrease any possible prison sentence. Finally, the prosecutor may agree to recommend to the court that the defendant serve a shorter prison sentence than the maximum term allowable under the simple possession statute.

Courts have generally upheld bargains whereby one defendant agrees to testify against another defendant or to provide evidence that incriminates another suspect. Some criminal defendants have sought to challenge these arrangements when other defendants have testified against them. For example, in United States v. Singleton, 165 F.3d 1297 (10th Cir. 1999), prosecutors struck a deal with Napoleon Douglas, a drug dealer, whereby the prosecutors agreed to reduce the charges against him if he agreed to testify against Sonya E. Singleton. A trial court convicted Singleton of conspiring to distribute drugs and of money laundering. Singleton's attorney argued during the trial and later on appeal that the deal between the prosecutors and Douglas amounted to bribery in violation of 18 U.S.C.A. § 201(c)(2) (2000). Although a panel of the United States Court of Appeals for the Tenth Circuit initially agreed with Singleton, the court sitting en banc over-ruled the panel and affirmed the conviction. According to the court, the federal bribery statute did not apply to the federal government with respect to plea bargains.

Defendants are not required to enter into plea negotiations or accept a plea agreement offer. Some defendants choose to decline a plea bargain if they believe that the risk of conviction is outweighed by the possibility of acquittal. Other defendants may disregard the risks and make a principled choice to proceed to trial. Some of these defendants seek to use trial proceedings as a forum for expressing dissent, and others merely wish to exercise their constitutional right to a trial or to publicly declare their version of events.

Prosecutors, likewise, are not obliged to plea bargain. When the alleged crime is particularly heinous or the case is highly publicized or politically charged, a prosecutor may be reluctant to offer any deals to the defendant in deference to victims or public sentiment. For example, a prosecutor may not offer a bargain to a person accused of a brutal rape and murder because such acts are widely considered to deserve the maximum allowable punishment.

The political influence on plea bargaining is more nebulous. Because prosecutors are hired by federal, state, and local governments, they often have political ties. If a case involves a prominent member of a political party, a prosecutor may refuse to offer a plea bargain to avoid the appearance of favoritism.

When a court accepts a plea agreement, the guilty plea operates as a conviction, and the defendant cannot be retried on the same offense. However, if the defendant breaches a plea agreement, the prosecution may reprose-cute the defendant. For example, assume that Defendant A, as part of the plea agreement, must testify against Defendant B. If Defendant A pleads guilty pursuant to this agreement but later refuses to testify against Defendant B, the prosecutor may seek a revocation of the plea agreement and guilty plea.

If the government breaches a plea agreement, the defendant may seek to withdraw the guilty plea, ask the court to enforce the agreement, or ask the court for a favorable modification in the sentence. The government breaches a plea agreement when it fails to deliver its part of the plea agreement. For example, if a prosecutor agrees to dismiss a certain charge but later reneges on this promise, the defendant may withdraw her guilty plea. An unenthusiastic sentence recommendation by a prosecutor is not a breach of a plea agreement (United States v. Benchimol, 471 U.S. 453, 105 S. Ct. 2013, 85 L. Ed. 2d 462 [1985]).

Some prosecutors demand that defendants waive certain constitutional rights in exchange for a plea bargain. One such right involves Brady evidence, which consists of exculpatory or impeachment evidence that tends to prove the factual innocence of the defendant. Under the case of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the U.S. Supreme Court requires prosecutors to inform defendants of such evidence. In 2001, the U.S. Court of Appeals for the Ninth Circuit held that it was unconstitutional for prosecutors to withhold a departure recommendation on grounds that the defendant refused to waive his or her right to Brady evidence (United States v. Ruiz, 241 F.3d 1157 [9th Cir. 2001]). A unanimous Supreme Court, however, disagreed, holding that the "Constitution does not require the government to disclose material evidence prior to entering a plea agreement with a criminal defendant" (United States v. Ruiz, 536 U.S. 622, 122 S. Ct. 2450, 153 L. Ed. 2d 586 [2002]).

When a prosecutor or defendant revokes a plea agreement, the statements made during the bargaining period are not admissible against the defendant in a subsequent trial. This rule is designed to foster free and open negotiations. There are, however, notable exceptions. The rule applies only to prosecutors: a defendant's statements to government agents are admissible. Furthermore, a prosecutor may use statements made by the defendant during plea negotiations at a subsequent trial to impeach the defendant's credibility after the defendant testifies.

Many jurisdictions maintain statutes that require victim notification of plea bargaining. In Indiana, for example, a prosecutor must notify the victim of a felony of negotiations with the defendant or the defendant's attorney concerning a recommendation that the prosecutor may make to the court. If an agreement is reached, the prosecutor must show the agreement to the victim, and the victim may give a statement to the court at the sentencing hearing (Ind. Code § 35-35-3-2 [1996]).

Plea bargaining was not favored in colonial America. In fact, courts actively discouraged defendants from pleading guilty. Courts gradually accepted guilty pleas in the nineteenth century. As populations increased and court procedural safeguards increased, courts became overcrowded, and trials became lengthier. This made trial in every case an impossibility. By the twentieth century, the vast majority of criminal cases were resolved with guilty pleas. In the early 2000s, plea bargaining is conducted in almost every criminal case, and roughly nine out of ten plea discussions yield plea agreements.

further readings

Gifford, Donald G. 1983. "Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion." University of Illinois Law Review 37.

Herman, Nicholas Herman. 1997. Plea Bargaining. Charlottesville, Va.: Lexis Law.

Hessick, F. Andrew, III, and Reshma M. Saujani. 2002. "Plea Bargaining and Convicting the Innocent: The Role of Prosecutor, the Defense Counsel, and the Judge." BYU Journal of Public Law 16.

Heumann, Milton. 2002."Plea Bargaining: Process and Out-come." Criminal Law Bulletin 38.

Nasheri, Hedieh. 1998. Betrayal of Due Process: A Comparative Assessment of Plea Bargaining in the United States and Canada. Lanham, Md.: Univ. Press of America.

Odiaga, Ursula. 1989. "The Ethics of Judicial Discretion in Plea Bargaining." Georgetown Journal of Legal Ethics 2.

Scott, Robert E., and William J. Stuntz. 1992. "Plea Bargaining as Contract." Yale Law Journal 101.

Soni, Anjili, and Michael E. McCann. 1996. "Guilty Pleas." Georgetown Law Journal 84.

cross-references

Beyond a Reasonable Doubt; Criminal Law; Criminal Procedure; District and Prosecuting Attorneys; Due Process of Law; Probable Cause.

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

plea bargaining negotiation in which a defendant agrees to plead guilty to a criminal charge in exchange for concessions by the prosecutor (representing the state). The defendant waives the right to trial, losing any chance for acquittal, but usually avoids conviction on a more serious charge. The state, on the other hand, is not required to go through a long, costly trial. Issues negotiated in plea bargaining include a reduction of the charge, a specific recommendation for sentence, or agreement by the prosecutor not to oppose a request for probation.

plea bar·gain·ing • n. Law an arrangement between a prosecutor and a defendant whereby the defendant pleads guilty to a lesser charge in the expectation of leniency. DERIVATIVES: plea-bar·gain v. plea bar·gain n.