plea bargaining

Ninety-seven percent of federal cases are settled through a plea bargain.

This may come as a surprise to those who associate criminal cases with vicious courtroom battles consisting of two high-powered attorneys hissing aggressively. In reality, the stark majority of guilty verdicts in the U.S. never make it to court — the defendant oftentimes takes a plea bargain instead, a profession of guilt that could secure a shorter sentence, resolving most cases in most jurisdictions. Only 19 countries admitted plea bargains in 1990, but now, that number sits at 66. Plea bargaining has always been a point of extreme contention — should we consider it an unconstitutional travesty of justice that capitalizes upon the vulnerability of innocent defendants within the system? Or is it an economically efficient means of resolving criminal cases and curbing prison populations?

The concept of plea bargaining was only born during the aftermath of the Civil War, when appellate courts began facilitating negotiations that resemble what we know today as plea deals. Deemed “shocking” and “terrible” at first, questions concerning the likelihood of innocent defendants pleading guilty and the secrecy of the process were posed, with the Wisconsin Supreme Court writing the practice off as a “direct sale of justice” in 1877. The process continued regardless. Alternatives to prison sentences were arranged, and police officers toured prisons making exchanges with convicts. By the 1920s, plea bargaining was virtually ubiquitous, with upward of 85 percent of criminal cases in cities like Chicago and New York City being settled through pleas.

Plea bargaining is prevalent for a myriad of reasons. Defendants can avoid having to bring their case to court and the risk of harsher punishments, mostly pleading guilty to a lesser charge or to only some of the charges held against them. Plea bargaining eliminates the uncertainty that comes along with a trial, and can provide more resources for the community. Trials are also expensive. Some estimate that prosecuting and convicting a single drug offender may cost up to $70,000, while plea bargaining could reduce that number to $4,200. The Supreme Court has recognized that if every case were to result in a complete trial, we would need many more courts, judges, and personnel. Aside from the economics, plea bargaining minimizes population levels at local jails and prisons by removing the need for defendants to be detained until they are tried. Prosecutors and courts are oftentimes overwhelmed with significant caseloads, and with plea bargaining, only the most serious cases have to be tried, while sentences for less severe infractions and misdemeanors can be negotiated. The practice changes the entire dynamic of case resolution and ensures that whatever resources remain are allocated only to the most serious cases.

However, practical as it may be, the concept of justice may be relinquished with plea bargaining. Innocent defendants with particularly damning inculpatory evidence stacked up against them are frequently advised and almost coerced by their attorneys into taking a plea deal — some form of sentencing is seen as inevitable, so defenders encourage their clients to at least negotiate for a lesser sentence. Criminologists estimate that the proportion of innocent defendants who plead guilty may fall anywhere between 2 and 8 percent.

Some blame plea bargaining for what the justice system in the U.S. is supposedly fashioning itself into — a draconian machine that takes in an accused person and returns a convicted criminal, with little respect to his or her legitimate guilt or innocence. Access to a fair trial is enshrined in the Sixth Amendment; critics argue that plea bargaining infringes upon that constitutional right, even though the Supreme Court condoned pleas in the 1969 case Brady v. United States. Plea bargaining can also lead to poor investigatory procedures, make it impossible for a defendant to appeal to another court, and, one of the most compelling dissuading factors, soften retribution for the guilty, trimming years off the sentences for serial killers, sex offenders, and other felons responsible for society’s most repulsive crimes. Additionally, while judges have to approve all proposed plea deals and negotiations, they do not get the chance to hear and review all the evidence comprising the case beforehand, nor will they always be aware of the amount of pressure put on a defendant to accept a deal.

Plea bargaining as a system cannot be eradicated. It is too efficient to be given up. But perhaps setting more restrictions on the way plea deals are made could allow us to retain the economic benefits of plea bargaining while championing justice and constitutionality. “Plea bargaining in the United States is less regulated than it is in other countries,” says Jenia Turner, a law professor at Southern Methodist University. For this reason, states are taking progressive measures to mediate the process. For example, in Connecticut, judges provide input. In Texas and North Carolina, evidence must be shared before a defendant pursues a plea deal. Turner argues that agreements should be recorded in writing, and that discounts off a jail sentence should vary depending on when a plea deal is accepted. The only alternative to imposing stricter regulations on pleas is holding more trials, something that would be, in most dimensions, infeasible; however, the city of Philadelphia combats this by holding bench trials, or trials without a jury. Bench trials work around most of the disadvantages typically associated with holding a trial for every case. Still, seeing such a solution implemented on a large scale is unlikely, since juries have always played an integral role in the U.S. justice system. Thus, harsher legislation and measures governing the use of plea deals in settling criminal cases must be instituted in order to ensure that defendants’ constitutional rights are upheld but the benefits of plea deals are still reaped.

The debate surrounding plea bargains will continue to rage on, forcing us to choose between effectiveness and justice, when in reality, we can cater to both necessities by increasing restrictions on plea bargaining and maintaining the practice. It will remain prevalent, but that doesn’t necessarily mean that it has to be perpetuated at the cost of defendants’ rights and liberties. By better understanding and regulating plea bargaining as it relates to the American criminal justice system, we are making strides towards ensuring both the highest levels of fairness and the highest levels of efficiency.