Guilty Plea: Plea Bargaining

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"There is no glory in plea bargaining," writes Professor George Fisher. "In place of a noble clash for truth, plea bargaining gives us a skulking truce . . . . Plea bargaining may be . . . the invading barbarian. But it has won all the same" (p. 859). In the late 1990s, 94 percent of the convictions of state-court felony defendants in the seventy-five largest U.S. counties were by guilty plea rather than trial (Bureau of Justice Statistics, 1999, p. iv). Similarly, 94 percent of all federal-court felony convictions were by guilty plea (Bureau of Justice Statistics, 2000, p. 51). Professor John Langbein, a prominent plea bargaining critic, suggests that Americans replace the word all in the Constitutional declaration, "The Trial of all Crimes . . . shall be by jury," with the words virtually none (Langbein, 1992). Plea bargaining has made our criminal justice system far more administrative than adjudicative in character.

Definition and types of bargaining

Plea bargaining consists of the exchange of any actual or apparent concession for a plea of guilty. Nevertheless, the term sometimes is used informally to include discussions about other things. For example, when a prosecutor offers favorable treatment to a defendant in exchange for the defendant's testimony against other suspected offenders, the prosecutor may refer to this offer as plea bargaining. Similarly, a defense attorney who approaches a prosecutor to seek a dismissal of pending criminal charges may refer to their discussion as plea bargaining. These uses of the term, however, seem imprecise. An unqualified dismissal of charges involves neither a plea nor an exchange, and a prosecutor's exchange of concessions for a suspect's or a defendant's testimony may occur without the entry of a plea of guilty.

Under the definition offered above, plea bargaining does not include pretrial diversion. Although diversion is often the result of a bargain and may be granted in exchange for concessions (for example, a defendant's agreement to participate in a specified treatment program), it does not lead to a conviction on a plea of guilty. Instead, if the defendant complies with the required conditions, the pending charges are dismissed, and the case is thus "diverted" from the criminal justice system.

It is common to distinguish between express and implicit plea bargaining. Express bargaining occurs when a defendant or his representative negotiates directly with a prosecutor, a trial judge, or (very rarely) another official concerning the benefits that may follow the entry of a plea of guilty. Implicit bargaining, by contrast, occurs without face-to-face negotiations. Officialssentencing judges especiallyestablish a pattern of treating defendants who plead guilty more leniently that those who exercise the right to trial, and defendants therefore come to expect that the entry of guilty pleas will be rewarded.

The concessions officials may offer for a plea of guilty are almost unlimited. Typically, a prosecutor agrees to reduce a single charge against a defendant to a less serious offense (for example, by substituting a charge of manslaughter for one of first-degree murder), to reduce the number of charges against a defendant (for example, by dismissing four bad-check charges when the defendant pleads guilty to one), or to recommend a particular sentence to the court (one the defendant is likely to regard as more lenient than the anticipated sentence after a conviction at trial). Bargaining for a reduction in either the number or severity of criminal charges is referred to as charge bargaining. Bargaining for a favorable sentence recommendation by the prosecutor (or bargaining directly with a trial judge for a favorable sentence) is referred to as sentence bargaining.

In cases of sentence bargaining, trial judges in a substantial number of jurisdictions must either impose sentences no more severe than those recommended by prosecutors or else afford defendants an opportunity to withdraw their guilty pleas. Even when trial judges are legally free to depart from bargained prosecutorial sentence recommendations, they tend to do so infrequently.

Although charge bargaining and sentence bargaining are the most common forms of plea bargaining, they are not the only ones. In fact bargaining, a prosecutor agrees not to contest a defendant's version of the facts or agrees not to reveal aggravating factual circumstances to the court. This form of bargaining is likely to occur when proof of an aggravating circumstance would lead to a mandatory minimum sentence or to a more severe sentence under sentencing guidelines. A prosecutor also may agree to provide leniency to a defendant's accomplices, withhold damaging information from the court, influence the date of the defendant's sentencing, arrange for the defendant to be sent to a particular correctional institution, request that a defendant receive credit on the sentence for time served in jail awaiting trial, agree to support the defendant's application for parole, attempt to have charges in other jurisdictions dismissed, arrange for sentencing in a particular court by a particular judge, provide immunity for crimes not yet charged, or simply remain silent when a recommendation otherwise might be unfavorable.

The development of plea bargaining

Guilty pleas have been regarded as a sufficient basis for conviction from the earliest days of the common law. In treating a guilty plea as conclusive, common law nations depart from the law of most nations on the European Continent. In serious cases, these nations do not treat any form of confession as an adequate basis for dispensing with trial (although trials are likely to be simpler and to focus mostly on sentencing issues when defendants do not contest their guilt).

Compared to the long Anglo-American history of guilty pleas, the history of plea bargaining seems relatively short. The criminal justice system long has rewarded some forms of cooperation by defendantsnotably, cooperation in procuring the conviction of other alleged offenders. Nevertheless, only occasional instances of plea bargaining have been discovered prior to the nineteenth century. For example, scholars who have studied eighteenth-century felony prosecutions in the Old Bailey in London report no sign of plea bargaining. To the contrary, the judges of the Old Bailey urged defendants who offered to plead guilty to reconsider and stand trial.

Although plea bargaining in felony cases before the nineteenth century was rare, nontrial dispositions in minor misdemeanor cases may have been the subject of express or implicit bargains. A misdemeanor court could permit a plea of nolo contendere, which allowed a defendant to submit to conviction and pay a fine without admitting guilt. Judges, however, did not allow nolo pleas in serious cases, and in early nineteenth-century America, guilty pleas typically accounted for a minority of felony convictions. When occasional cases of plea bargaining began to appear in reported decisions in the second half of the century, appellate judges voiced strong disapproval of the practice. Despite this disapproval, plea bargaining became routine in many places before the end of the century. Plea bargaining remained a low-visibility activity, however, until crime commission studies in the 1920s revealed how extensive it had become.

Among the historical developments that may have contributed to the growth of plea bargaining were (1) the increasing complexity of the trial process (which may have led to the greater use of nontrial procedures both for economic reasons and because officials sought to avoid the "technicalities" of trial); (2) expansion of the substantive criminal law (particularly the enactment of liquor-prohibition statutes); (3) increasing crime rates; (4) larger case loads; (5) the frequent political corruption of urban criminal courts at and after the turn of the twentieth century; (6) the greater use of professionals in the administration of criminal justice (police, prosecutors, and defense attorneys); and (7) the increasing statutory power of prosecutors.

A comparative perspective

Plea bargaining is common in England, Canada, and most other nations of the British Commonwealth. As recently as 1979, however, a noted law review article proclaimed that Germany was a "land without plea bargaining" (Langbein, 1979). Not only was the formal plea of guilty unknown in serious cases in Germany, but prosecutors and judges did not promise or negotiate for in-court confessions. Even implicit concessions were unlawful, and because German trial procedure was simpler and more straightforward than English and American procedure, concessions for confession were unnecessary.

This law review article's claim was plausible when it was made, but it did not remain accurate. European and American criminal justice systems have become more alike, and most of the movement has come on the European side. As trials in Germany and elsewhere became longer and more adversarial, as complex prosecutions for white-collar crime came before the courts in greater numbers, and as case loads increased, German prosecutors offered concessions to defendants not to contest their guilt. Italy, in fact, formally instituted a system of plea bargaining by statute. Plea bargaining remains less frequent in Continental Europe than in England and America. One German observer declares that "some kind of bargaining takes place in roughly twenty to thirty percent of all cases" (Herrmann, p. 756). Moreover, debate about the propriety of plea bargaining, which has faded in America, remains lively in Germany. The recent history of Continental jurisdictions seems to teach the same lesson as our own history. The more elaborate and adversarial the trial process becomes, the less likely it is to be used.

Operation of the plea bargaining system

As the following remarks may suggest, the day-to-day operation of the plea bargaining system cannot be neatly captured in a simple description:

In attending . . . conferences on plea bargaining, I have been struck by the extent to which people who should understand this subject . . . sound like the blind man describing the elephant. One scholar may begin by declaring that plea bargaining usually produces the same result as trial. When two experienced lawyers can use their expertise to predict the probable out-come of a trial, they are very likely to agree; and once this happens, there is no longer any need for the trial to be held. Another scholar then suggests that trial is often a capricious process whose results cannot be predicted. When a case goes to trial one either "wins big" or "loses big." The goal of plea bargaining is not to produce the same result as trial but to "vector" the risks of litigation and to reach a more sensible middle ground. Still another academic then contends that the object of plea bargaining is neither to produce the same results as trial nor to vector the risks of litigation. The goal is to escape altogether the irrationalities of an overly legalized trial system and . . . to achieve "substantive justice" without regard to technicalities. Then [another] lawyer . . . proclaims that all of this misses the point. A lawyer's object in plea bargaining is to take as much as possible from the other side by threat, bluster, charm, bluff, campaign contributions, personal appeals, friendship, or whatever else works. Finally some cynic . . . says that sometimes the dominant motivation is for lazy lawyers and judges to take the money and go home early. Of course, to some extent, all of these things are happening at the same time. The disagreement, if not wholly illusory, merely concerns the relative size of the trunk, tail, legs, ears, and side. (Alschuler, 1981, p. 691 n. 103)

In view of the different forms that plea bargaining may take and the many considerations that may influence it, mathematical models of plea negotiation of the sort developed by economists generally seem artificial to practicing lawyers. A few of the major operational issues are discussed below.

The "sentence differential." Defendants in America plead guilty in overwhelming numbers partly because they believe this action is likely to lead to more favorable treatment than conviction at trial. The U.S. Sentencing Commission reported that, prior to the implementation of the Federal Sentencing Guidelines, the sentences of federal defendants who pleaded guilty were 30 to 40 percent less severe than those of comparable defendants convicted at trial. The Commission's 1987 Guidelines authorized a substantial sentence reduction for a defendant's "acceptance of responsibility," and in 1992, the Commission authorized a further reduction for "assist[ance] in the prosecution of [the defendant's] own misconduct by . . . timely notifying authorities of his intention to enter a plea of guilty." The benefits of both of these "adjustments" are typically added to whatever sentencing benefits a defendant can obtain through charge bargaining and fact bargaining with prosecutors.

Most prosecutors and defense attorneys can describe cases in which defendants rejected plea bargaining offers and then were sentenced far more severely after convictions at trial. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), for example, a defendant charged with forging an $88 check rejected the prosecutor's offer to recommend a five-year sentence in exchange for a plea of guilty. The prosecutor then re-indicted the defendant as a habitual offender, and following his conviction at trial, the defendant was sentenced to a mandatory life term. The U.S. Supreme Court upheld the defendant's reindictment, conviction, and sentence.

At the same time, defendants may be influenced to plead guilty not only by accurate perceptions that more severe treatment will follow convictions at trial but also by inaccurate perceptions, by a desire to avoid the "process costs" of a trial (such costs as the loss of wages resulting from court appearances), by the lack of plausible defenses, and sometimes by remorse.

The significance of case load pressures. It is commonly suggested that the practical inability to provide trials to more than a small minority of defendants accounts for the predominance of plea negotiation. Some scholars, however, have sought to refute the "myth" that case load pressures "cause" plea bargaining (e.g., Heumann).

Financial pressure certainly is not the only reason for plea bargaining, and the reduction or elimination of this pressure would not automatically bring plea bargaining to an end. Prosecutors still would have incentives to bargain in cases in which they doubted their ability to secure convictions at trial and in other situations as well. At the same time, prosecutors and other officials regularly mention case load pressure as one important reason for their plea bargaining practices. The best conclusion probably is that case load pressures are indeed a cause of plea bargaining but not a necessary cause.

The principal actors in the bargaining process

Prosecutors. In making plea agreements, prosecutors are influenced by a variety of concerns. As mentioned above, one important motivation is the apparent need to induce large numbers of guilty pleas in order to keep criminal case loads within manageable proportions. This administrative concern sometimes leads prosecutors to offer greater concessions in complex cases whose trials are likely to consume substantial amounts of time than in more routine prosecutions.

In addition, prosecutors almost universally report that they consider the strength or weakness of the state's evidence an important bargaining consideration. On the theory that "half a loaf is better than none," they offer greater concessions to defendants who appear to have a substantial chance of acquittal than to defendants without plausible defenses. Indeed, in some situations, prosecutors may bluff defendants into pleas of guilty by concealing case weaknesses that would make conviction at trial impossible. The practice of "bargaining hardest when the case is weakest" may suggest that "the greatest pressures to plead guilty are brought to bear on defendants who may be innocent" (Alschuler, 1968, p. 60).

Frequently, the issue compromised through plea bargaining is not whether the prosecutor has charged "the right person." Rather, the parties compromise a legal issue (such as the admissibility of evidence) or a mixed issue of fact and law (such as intention, causation, insanity, or self-defense).

Prosecutors plainly are influenced by the equities of individual cases (the seriousness of the defendant's alleged crime, the defendant's prior criminal record, and so on). At times, prosecutors are influenced as well by their personal views of the law the defendant is accused of violating. Moreover, although the victim of the crime has been called the forgotten person in plea bargaining, many prosecutors give substantial weight to the desires of victims.

In most of the roles described above, prosecutors enter plea agreements primarily because these bargains seem to offer greater benefit to the state than the alternative of trial. On occasion, however, prosecutors bargain for more personal reasons. Through plea bargaining, a prosecutor can avoid much of the hard work of preparing cases for trial and of trying them. In addition, prosecutors can use plea bargaining to create seemingly impressive conviction rates. The desire to be liked and to enjoy comfortable relationships with coworkers also may influence plea bargaining practices. So may the desire for professional advancement either within a prosecutor's office or after leaving it. Although most prosecutors probably do not deliberately sacrifice the public interest to their personal goals, the bargaining process is beset by conflicts of interest, and prosecutors may rationalize decisions that serve primarily their own interests.

One persistent issue is the extent to which prosecutors "overcharge" in the effort to induce pleas of guilty. Do they charge more serious crimes than the circumstances of their cases seem to warrant, or a greater number of offenses than seems warranted, in an effort to induce defendants to plead guilty to the "proper" crimes? Deliberately filing unfounded charges to gain plea bargaining leverage is undoubtedly rare, but both the likelihood of plea bargaining and other strategic concerns may lead prosecutors to construe the available evidence and to file charges at the highest level that the evidence will permit. Prosecutors often file charges that they intend to press to conviction only when defendants insist on standing trial.

Defense attorneys. Although bargaining with unrepresented defendants once was common, it is now unusual except in traffic cases and other minor cases. In the main, defense attorneys seek to advance their clients' interests through plea bargaining in much the same way that prosecutors seek to advance the public interest. They recommend plea agreements to a client primarily when the concessions that the client has been offered seem to overbalance the client's chances of acquittal.

Again, however, there are substantial conflicts of interest. Private defense attorneys commonly are paid in advance, and their fees do not vary with the pleas their clients enter. Once an attorney has pocketed the fee, the attorney's personal interest may lie in disposing of a client's case as rapidly as possiblethat is, by entering a plea of guilty. Even conscientious attorneys may find their judgments colored to some extent by this economic consideration. Moreover, not all defense attorneys are conscientious. "Cop-out lawyers" who plead virtually all of their clients guilty sometimes represent large numbers of defendants for relatively low fees. Some of these lawyers have been known to deceive their clients in the effort to induce them to plead guilty.

Appointed attorneys may suffer a similar conflict of interest. The relatively small amount that an appointed attorney is likely to receive for representing an indigent defendant may seem inadequate compensation for a trial, but this amount may seem substantially less inadequate as a fee for negotiating a plea of guilty.

Unlike private lawyers and other appointed attorneys, public defenders are salaried lawyers whose compensation does not vary with the time their individual cases require. Nevertheless, public defenders are usually overworked, and some defenders seem to view plea bargaining in all but the most exceptional cases as necessary to the effective management of their case loads.

In theory, the decision to enter a plea of guilty is the defendant's rather than the attorney's. Nevertheless, many defense attorneys speak of "client control" as an important part of the plea negotiation process. When clients are reluctant to follow their advice, these attorneys may use various forms of persuasion, including threats to discontinue their representation, in an effort to lead the clients to what the attorneys regard as the appropriate course of conduct.

The serious problem of providing effective representation in the plea bargaining process often has been neglected. Observers simply assume that defense attorneys will perform the protective role the criminal justice system assigns to them and will advise guilty pleas only when these pleas are likely to advance their clients' interests. This view of the defense attorney's role is often more romanticized than real.

Trial judges. Although prosecutors and defense attorneys are the principal actors in the plea bargaining process, judicial participation in this process is far from rare. This participation may take various forms. In some courts, trial judges conduct in-chambers conferences and offer to impose specified sentences when defendants plead guilty. In others, judges offer suggestions to prosecutors and defense attorneys, describe how they have treated certain cases in the past, or indicate a probable range of sentences.

Judges who do not participate in any form of explicit bargaining may engage in implicit bargaining by treating a defendant's guilty plea as a reason for substantially reducing the penalty imposed. Judges may also further the goals of plea bargaining by deferring routinely to prosecutorial plea bargaining decisions. Primarily on the theory that judicial plea bargaining is more coercive that prosecutorial bargaining, some authorities have argued that judges should be prohibited from engaging in this practice. This position has been adopted in rules and appellate decisions in a number of jurisdictions, including the federal courts.

Plea bargaining and sentencing guidelines

The statute that created the U.S. Sentencing Commission in 1984 directed it to promulgate policy statements concerning the acceptance or rejection of plea agreements by judges. The legislative history of this statute revealed Congress's concern that plea bargaining could undermine the equality in sentencing it sought to achieve. When the Commission submitted its Sentencing Guidelines to Congress in 1987, however, it declared: "The Commission has decided that these initial guidelines will not in general make significant changes in current plea negotiation practices . . . . The Commission will collect data on the courts' plea practices and will analyze this information . . . . In light of this information and analysis, the Commission will seek to further regulate the plea agreement process as appropriate" (U.S. Sentencing Commission, p. 1.8). Thirteen years after this statement, the Commission apparently was still studying the issue. With one unimportant exception, state sentencing guidelines have imposed no limits on plea bargaining at all.

Sentencing guidelines have tended to transfer sentencing discretion from judges to prosecutors. Indeed, guidelines that appear to mandate tough sentences but leave plea bargaining unconstrained sometimes mimic the "good-cop, bad-cop" stratagem for obtaining confessions at the stationhouse. The sentencing commission, the "bad-cop," threatens the accused with harsh treatment. The prosecutor, the "good-cop," then offers to save the accused from the threatened guidelines sentence in exchange for a plea of guilty. Substantial sentencing discretion remainsexcept for defendants who exercise the right to trial.

Of course much depends on the extent to which prosecutors do approve less severe treatment than sentencing guidelines prescribe when defendants plead guilty. Federal prosecutors seem to have undercut guidelines less than state prosecutors, and although researchers have discovered at least occasional guidelines evasion through plea bargaining in every federal district studied, the extent of this evasion varies substantially from one district to the next (see Schulhofer and Nagel).

Evaluations of plea bargaining

Prior to the mid-1960s, most courts and scholars tended to ignore plea bargaining, and when discussions of the practice occurred, it usually was critical. The crime commissions of the 1920s, for example, described plea bargaining as a lazy form of prosecution that resulted in undue leniency for offenders. In 1967, however, both the American Bar Association and the President's Commission on Law Enforcement and Administration of Justice approved the concept of plea bargaining. Like these national study groups and like virtually all American courts, most scholars have tended to approve of plea negotiation, at least in broad outline. One departure from the pattern was the 1973 report of the National Advisory Commission on Criminal Justice Standards and Goals, which recommended the abolition of all forms of plea bargaining within five years.

Plea negotiation raises substantial legal and constitutional issues. For one thing, common law courts traditionally treated a confession as involuntary when it had been induced by a promise of leniency from a person in authority. The application of this rule to plea bargaining would have rendered all bargained guilty pleas invalid. Moreover, a guilty plea waives the constitutional right to trial and subordinates trial rights such as the right to confront one's accusers. Under the "doctrine of unconstitutional conditions," waivers of constitutional rights often are held invalid when they have been required as a condition for receiving favorable governmental treatment.

Despite these substantial issues, the Supreme Court under Chief Justice Earl Warren all but ignored plea bargaining during the period of its "due process revolution." One decision at the very end of the Warren Court era seemed to call certain plea bargaining practices into question (United States v. Jackson, 390 U.S. 570 (1968)). The Supreme Court did not pass directly upon the constitutionality of plea bargaining, however, until 1970 and 1971 when, in a series of cases, it approved the practice. The Court saw the presence of counsel as a significant safeguard of fairness in plea negotiation, and it emphasized that plea bargaining may result in a mutuality of advantage partly because the defendant limits the probable penalty while the state conserves scarce resources (Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Santobello v. New York, 404 U.S. 257 (1971)).

The Supreme Court has required that plea agreements be honored, and it has held that certain procedures must be followed in accepting pleas of guilty. The Court also has held that in some circumstances a trial judge constitutionally may accept a guilty plea submitted by a defendant who claims to be innocent (North Carolina v. Alford, 400 U.S. 25 (1970)).

Apart from the legal contentions noted above, critics of plea bargaining have advanced a number of objections to it. They have argued that plea bargaining undercuts the requirement of proof beyond a reasonable doubt and that plea negotiation is substantially more likely than trial to result in the conviction of innocent defendants. They also maintain that plea bargaining results in unjust sentencing. In their view, this practice turns the defendant's fate on a single tactical decision, which, they say, is irrelevant to desert, deterrence, or any other proper objective of criminal proceedings. Some critics maintain that plea bargaining results in unwarranted leniency for offenders and that it promotes a cynical view of the legal process.

Critics of plea bargaining also object to the shift of power to prosecutors that plea bargaining has effected, noting that sentencing judges often do little more than ratify prosecutorial plea bargaining decisions. They maintain that, even more clearly, plea bargaining makes figureheads of the probation officers who prepare presentence reports after the effective determination of sentence through prosecutorial negotiations. Plea negotiation, they say, very frequently results in the imposition of sentences on the basis of incomplete information. In light of the conflicts of interest that beset prosecutors, defense attorneys, and trial judges, the critics sometimes contend that plea negotiation subordinates both the public's interest and the defendant's to the interests of criminal justice administrators. In their view, the practice also warps both the initial formulation of criminal charges and, as defendants plead guilty to crimes less serious than those that they apparently committed, the final judicial labeling of offenses. Finally, critics suggest that plea bargaining deprecates human liberty and the purposes of the criminal sanction by "commodifying" these thingsthat is, treating them as instrumental economic goods.

Defenses of plea bargaining fall into three main categories. First, some defenders maintain that it is appropriate as a matter of sentencing policy to reward defendants who acknowledge their guilt. They advance several arguments in support of this positionnotably, that a bargained guilty plea may manifest remorse, an acceptance of responsibility, or a willingness to enter the correctional system in a frame of mind that may afford hope for rehabilitation over a shorter period of time than otherwise would be necessary.

A second defense treats plea bargaining, not primarily as a sentencing device, but as a form of dispute resolution. Some plea bargaining advocates maintain that it is desirable to afford the defendant and the state the option of compromising factual and legal disputes. They observe that if a plea agreement did not improve the positions of both the defendant and the state, one party or the other would insist upon a trial. These defenders view plea bargaining as essentially indistinguishable from settling a civil lawsuit.

Finally, some observers defend plea bargaining on grounds of economy or necessity. Viewing plea negotiation less as a sentencing device or a form of dispute resolution than as an administrative practice, they argue that society cannot afford to provide trials to all the defendants who would demand them if guilty pleas were unrewardedor, at least, that there are more appropriate uses for the additional resources that an effective plea bargaining prohibition would require. Sometimes these defenders add that any attempt to prohibit plea bargaining would prove ineffective and would merely drive the practice underground.

Abolition and reform efforts

The claim that plea bargaining is a "practical necessity" derives support from the high percentage of criminal cases resolved by guilty pleas. Nevertheless, plea bargaining opponents sometimes suggest that existing resources could be allocated more effectively by providing less elaborate trials to greater numbers of defendants. They point, for example, to the practices of cities in which the frequent use of informal nonjury trials has resulted in guilty-plea rates far lower than those of other jurisdictions (see Schulhofer). Moreover, they observe that it is difficult to know the extent to which trial rates would increase if plea bargaining were prohibited; a substantial number of defendants lacking plausible defenses might plead guilty without the inducements now provided by plea bargaining.

The most notable American effort to abolish plea bargaining began in Alaska in 1975. Evaluations of this reform by the Alaska Judicial Council five and fifteen years later revealed that "[p]lea bargaining effectively was prohibited in most Alaska cases for about 10 years. The prohibition did not, as far as could be measured, cause major disruption to the justice system. The screening portion of the policy resulted in better police investigations and stronger cases" (Carns and Kruse, p. 317). Although Alaska's plea bargaining prohibition led to a 30 percent increase in the number of trials, the absolute number of trials remained small. A substantial majority of convictions continued to be by guilty plea. Despite the increased trials, court delay was reduced, possibly because of a reduction in the dilatory tactics that plea bargaining had encouraged. The Judicial Council reported that the plea bargaining ban led to substantial increases in sentence severity in some crime categories but to no increases in others. Largely because supervising prosecutors in the mid-1980s did not share the critical view of plea bargaining that had impelled the ban, plea bargaining reemerged in Alaska. The state's plea bargaining prohibition formally ended in 1993.

One plea bargaining reformthat of placing plea agreements "on the record"has been adopted in nearly all American jurisdictions. In earlier decades, guilty-plea defendants usually were expected to (and did) declare that no promises had been made to induce their pleas. Today the practice of plea negotiation is generally avowed, and the terms of individual plea agreements are often recorded when guilty pleas are accepted.

One common focus of reform efforts is the role of the trial judge. Some reformers advocate substantially less judicial involvement in plea negotiations; others, substantially more. Some reformers also hope to limit the extent of the sentence differential between defendants who plead guilty and those who exercise the right to trial.

Some prosecutors' offices have formulated internal guidelines to regulate plea negotiation and other forms of discretionary decisionmaking. These guidelines have been designed both to reduce discretion and to afford office administrators greater control over their subordinates. Nevertheless, the variables that influence plea negotiation are so numerous and so complex that it is difficult to reduce them to a formula. Many guidelinesfor example, those promulgated by the U.S. Department of Justicehave been so general as to provide only minimal constraints on prosecutorial discretion. Moreover, even reasonably specific guidelines sometimes have proven ineffective in practice.


Plea negotiation will remain central to the American criminal justice system for the foreseeable future. Nevertheless, as the President's Commission on Law Enforcement and Administration of Justice observed in 1967, "Few practices in the system of criminal justice create a greater sense of unease and suspicion than the negotiated plea of guilty" (p. 9). Plea bargaining raises fundamental issues of sentencing policy, of the propriety of compromising questions of criminal guilt, and of the use of governmental inducements to secure waivers of constitutional rights.

Albert W. Alschuler

See also Counsel: Right to Counsel; Counsel: Role of Counsel; Criminal Justice Process; Criminal Procedure: Comparative Aspects; Guilty Plea: Accepting the Plea; Informal Disposition; Prosecution: Comparative Aspects; Prosecution: Prosecutorial Discretion.


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. "The Defense Attorney's Role in Plea Bargaining." Yale Law Journal 84 (1975): 11791314.

. "Plea Bargaining and Its History." Columbia Law Review 79 (1979): 143.

. "The Changing Plea Bargaining Debate." California Law Review 69 (1981): 652730.

. "Implementing the Criminal Defendant's Right to Trial: Alternatives to the Plea Bargaining System." University of Chicago Law Review 50 (1983): 9311050.

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Fisher, George. "Plea Bargaining's Triumph." Yale Law Journal 109 (2000): 8571086.

Herrmann, Joachim. "Bargaining Justice: A Bargain for German Criminal Justice?" University of Pittsburg Law Review 53 (1992): 755776.

Heumann, Milton. Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys. Chicago: University of Chicago Press, 1977.

Langbein, John H. "Land without Plea Bargaining: How the Germans Do It." Michigan Law Review 78 (1979): 204255.

. "On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial." Harvard Journal of Law and Public Policy 15 (1992): 119127.

President's Commission on Law Enforcement and Administration of Justice, Task Force on the Administration of Justice. Task Force Report: The Courts. Washington, D.C.: The Commission, 1967.

Rubinstein, Michael L.; Clarke, Stevens H.; and White, Teresa J. Alaska Bans Plea Bargaining. Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 1980.

Schulhofer, Stephen J. "Is Plea Bargaining Inevitable?" Harvard Law Review 97 (1984): 10371107.

Schulhofer, Stephen J., and Nagel, Ilene H. "Plea Negotiations under the Federal Sentencing Guidelines: Guideline Circumvention and Its Dynamics in the Post-Mistretta Period." Northwestern University Law Review 91 (1997): 12841316.

U.S. Department of Justice, Law Enforcement Assistance Administration, National Advisory Commission on Criminal Justice Standards and Goals. Courts. Washington, D.C.: The Commission, 1973.

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Bordenkircher v. Hayes, 434 U.S. 357 (1978).

Brady v. United States, 397 U.S. 742 (1970).

McMann v. Richardson, 397 U.S. 759 (1970).

North Carolina v. Alford, 400 U.S. 25 (1970).

Santobello v. New York, 404 U.S. 257 (1971).

United States v. Jackson, 390 U.S. 570 (1968).

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Guilty Plea: Plea Bargaining

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