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

Sections within this essay:

Background

There is no perfect or simple definition of plea bargaining. Black's Law Dictionary defines it as follows:

"[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge."

In practice, plea bargaining often represents not so much "mutual satisfaction" as perhaps "mutual acknowledgement" of the strengths or weaknesses of both the charges and the defenses, against a backdrop of crowded criminal courts and court case dockets. Plea bargaining usually occurs prior to trial but, in some jurisdictions, may occur any time before a verdict is rendered. It also is often negotiated after a trial that has resulted in a hung jury: the parties may negotiate a plea rather than go through another trial.

Plea bargaining actually involves three areas of negotiation:

• Charge Bargaining: This is a common and widely known form of plea. It involves a negotiation of the specific charges (counts) or crimes that the defendant will face at trial. Usually, in return for a plea of "guilty" to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a "guilty" plea for manslaughter (subject to court approval).
• Sentence Bargaining: Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.
• Fact Bargaining: The least used negotiation involves an admission to certain facts ("stipulating "to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.

The validity of a plea bargain is dependent upon three essential components:

• a knowing waiver of rights
• a voluntary waiver
• a factual basis to support the charges to which the defendant is pleading guilty

Plea bargaining generally occurs on the telephone or in the prosecutor's office at the courtroom. Judges are not involved except in very rare circumstances. Plea bargains that are accepted by the judge are then placed "on the record" in open court. The defendant must be present.

One important point is a prosecuting attorney has no authority to force a court to accept a plea agreement entered into by the parties. Prosecutors may only "recommend" to the court the acceptance of a plea arrangement. The court will usually take proofs to ensure that the above three components are satisfied and will then generally accept the recommendation of the prosecution.

Moreover, plea bargaining is not as simple as it may first appear. In effectively negotiating a criminal plea arrangement, the attorney must have the technical knowledge of every "element" of a crime or charge, an understanding of the actual or potential evidence that exists or could be developed, a technical knowledge of "lesser included offenses" versus separate counts or crimes, and a reasonable understanding of sentencing guidelines.

Pros and Cons

Although plea bargaining is often criticized, more than 90 percent of criminal convictions come from negotiated pleas. Thus, less than ten percent of criminal cases go to trial. For judges, the key incentive for accepting a plea bargain is to alleviate the need to schedule and hold a trial on an already overcrowded docket. Judges are also aware of prison overcrowding and may be receptive to the "processing out" of offenders who are not likely to do much jail time anyway.

For prosecutors, a lightened caseload is equally attractive. But more importantly, plea bargaining assures a conviction, even if it is for a lesser charge or crime. No matter how strong the evidence may be, no case is a foregone conclusion. Prosecutors often wage long and expensive trials but lose, as happened in the infamous O. J. Simpson murder trial. Moreover, prosecutors may use plea bargaining to further their case against a co-defendant. They may accept a plea bargain arrangement from one defendant in return for damaging testimony against another. This way, they are assured of at least one conviction (albeit on a lesser charge) plus enhanced chances of winning a conviction against the second defendant. For the defendants, plea bargaining provides the opportunity for a lighter sentence on a less severe charge. If represented by private counsel, defendants save the cost for trial and have fewer or less serious offenses listed on their criminal records.

U.S. Supreme Court Cases

Article III, Section 2[3] of the U.S. Constitution provides that "The trial of all crimes, except in Cases of Impeachment, shall be by Jury." However, it has never been judicially determined that engaging in a plea bargaining process to avoid trial subverts the Constitution. To the contrary, there have been numerous court decisions, at the highest levels, that discuss and rule on plea bargains. The U.S. Supreme Court did not address the constitutionality of plea bargaining until well after it had become an integral part of the criminal justice system.

In United States v. Jackson, 390 U.S. 570 (1968), the Court questioned the validity of the plea bargaining process if it burdened a defendant's right to a jury trial. At issue in that case was a statute that imposed the death penalty only after a jury trial. Accordingly, to avoid the death penalty, defendants were waiving trials and eagerly pleading guilty to lesser charges. Justice Potter Stewart, writing for the majority, noted that the problem with the statute was not that it coerced guilty pleas but that it needlessly encouraged them.

Two years later, the Court actually defended plea bargaining in Brady v. United States, 397 U.S. 742 (1970), pointing out that the process actually benefited both sides of the adversary system. The Court noted that its earlier opinion in Jackson merely required that guilty pleas be intelligent and voluntary. The following year, in Santobello v. New York, 404 U.S. 260 (1971), the Court further justified the constitutionality of plea bargaining, referring to it as "an essential component of the administration of justice." The Court added that '[as long as it is] properly administered, [plea bargaining] is to be encouraged."

The Alford Plea

But the most cited and most familiar Supreme Court case on plea bargaining is North Carolina v. Al-ford, 400 U.S. 25 (1970). In 1970, North Carolina law provided that a penalty of life imprisonment would attach to a plea of guilty for a capital offense, but the death penalty would attach following a jury verdict of guilty (unless the jury recommended life imprisonment). Alford faced the death penalty for first-degree murder. Although he claimed innocence on all charges (in the face of strong evidence to the contrary), Alford pleaded guilty to second-degree murder prior to trial. The prosecutor accepted the plea, and he was sentenced to 30 years' imprisonment. Alford then appealed his case, claiming that his plea was involuntary because it was principally motivated by fear of the death penalty. His conviction was reversed on appeal. However, the U.S. Supreme Court held that a guilty plea which represents a voluntary and intelligent choice when considering the alternatives available to a defendant is not "compelled" within the meaning of the Fifth Amendment just because it was entered to avoid the possibility of the death penalty. (Alford had argued that his guilty plea to a lesser charge violated the Fifth Amendment's prohibition that '"No person … shall be compelled in any criminal case to be a witness against himself.") The Supreme Court reversed the court of appeals and reinstated Alford's conviction and sentence.

The term "Alford Plea" has come to apply to any case in which the defendant tenders a guilty plea but denies that he or she has in fact committed the crime. The Alford plea is expressly prohibited in some states and limitedly allowed in others. In federal courts, the plea is conservatively permitted for certain defenses and under certain circumstances only.

Plea Bargaining in Federal Courts

The Federal Rules of Criminal Procedure (F.R.Crim.P), and in specific, Rule 11(e), recognizes and codifies the concept of plea agreements. However, because of United States Sentencing Guideline (USSG) provisions, the leeway permitted is very restrictive. Moreover, many federal offenses carry mandatory sentences, with no room for plea bargaining. Finally, statutes codifying many federal offenses expressly prohibit the application of plea arrangements. (See "Sentencing and Sentencing Guidelines.")

Federal criminal practice is governed by Title 18 of the U.S. Code, Part II (Criminal Procedure). Chapter 221 of Part II addresses arraignments, pleas, and trial. The U.S. Attorney's Manual (USAM) contains several provisions addressing plea agreements. For example, Chapter 9-16.300 (Plea Agreements) states that plea agreements should "honestly reflect the totality and seriousness of the defendant's conduct," and any departure must be consistent with Sentencing Guideline provisions. The Justice Department's official policy is to stipulate only to those facts that accurately represent the defendant's conduct. Plea agreements require the approval of the assistant attorney general if counts are being dismissed, if defendant companies are being promised no further prosecution, or it particular sentences are being recommended (USAM 7-5.611).

Prohibitions and Restrictions

Aside from legal considerations as to the knowing or voluntary nature of a plea, there are other restrictions or prohibitions on the opportunity to plea bargain. In federal practice, U.S. attorneys may not make plea agreements which prejudice civil or tax liability without the express agreement of all affected divisions or agencies (USAM 9-27.630). Moreover, no attorney for the government may seek out, or threaten to seek, the death penalty solely for the purpose of obtaining a more desirable negotiating position for a plea arrangement (USAM 9-10.100). Attorneys are also instructed not to consent to "Alford pleas" except in the most unusual circumstances and only with the recommendation of assistant attorneys general in the subject matter at issue. In any case where a defendant has tendered a plea of guilty but denies that he or she committed the offense, the attorney for the government should make an offer of proof of all facts known to the government to support the conclusion that the defendant is in fact guilty (USAM 9-16.015). Similarly, U.S. attorneys are instructed to require an explicit stipulation of all facts of a defendant's fraud against the United States (tax fraud, Medicare/Medicaid fraud, etc.) when agreeing to plea bargain (USAM 9-16.040).

State Provisions

Plea bargaining is not a creature of law: it is one of legal practice. Therefore, state statutes do not create the right to plea bargain, nor do they prohibit it, with one exception. In 1975, Alaska's attorney general at the time, Avrum Gross, banned plea bargaining in Alaska. Although the ban remains officially "in the books," charge bargaining has become fairly common in most of Alaska's courts. Nonetheless, Alaska has not suffered the unmanageable caseloads or backlogged trials that were predicted when the ban went into effect.

If plea bargaining appears at all in state statutes, it is generally in the context of being prohibited or restricted for certain matters or types of cases. For example, many states have prohibited plea bargaining in drunk driving cases, sex offender cases, or those involving other crimes that place the public at risk for repeat offenses or general harm. Another common provision, found in a majority of states, is a requirement that a prosecutor must inform a victim or the victim's survivors of any plea bargaining in a case. In many states, victims' views and comments regarding both plea bargaining and sentencing are factored into the ultimate decisions or determinations.

At least one state (Alabama) has expressly ruled that once a plea bargain is accepted, or there is detrimental reliance upon the agreement before the plea is entered, it becomes binding and enforceable under constitutional law (substantive due process). Ex Parte Hon. Orson Johnson, (Alabama, 1995).

Additional Resources

"The Core Concerns of Plea Bargaining Critics." Douglas D. Guidorizzi. Available at http://www.law.emory.edu/ELJ/volumes/spg98/guido.html.

The Court TV Cradle-to-grave Legal Survival Guide Little, Brown and Company, 1995.

"Criminal Procedure: an Overview." Available at http://www.law.cornell.edu/topics/civil_procedure.html

"Federal Rules of Criminal Procedure." Available at http://www.law.cornell.edu/topics/civil_procedure.html

"Plea Bargains: Why and When They're Made." Available at http://www.nolo.com/lawcenter/ency/category.

United States Attorneys Manual. (USAM. Office of the U.S. Attorney General, Dept. of Justice. Available at http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/16mcrm.htm

U.S. Code, Title 18: Crimes and Criminal Procedure, Part II: Procedure, Chapter 221: Arraignment, Pleas and Trial. U.S. House of Representatives. Available at http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/ii/chapters/221.

PLEA BARGAINING

The overwhelming majority of convictions in American criminal courts occur when the accused pleads guilty to a charge; few defendants receive a full judicial trial. "Plea bargaining" describes a variety of incentives and pressures that produce this result and that are commonly encountered in American criminal courts. Some plea bargaining is explicit: defendants are led by the prosecutor or the judge to plead guilty in return for the promise of some concession or in fear of harsh treatment meted out to those who insist on a trial. The reward for defendants may be release on bail before trial, the dropping or reduction of charges, or the lightening of punishment imposed after conviction. Some defendants may plead guilty out of a sense of contrition, but more probably acquiesce in conviction because they expect more lenient treatment if they do not insist on their right to trial.

Overt negotiation to induce a defendant to plead guilty is often not necessary. The incentive structure is built into the culture of the courthouse and into the substantive criminal code itself. Those accused of crime learn the culture from cellmates, friends, and lawyers. Under most modern American penal codes, the same criminal conduct typically permits the defendant to be charged with one or more of several distinct offenses, each carrying different levels of potential punishment. Some of the potential sentences are severe: not just capital punishment but punishment for common offenses by prison terms that may exceed the length of a person's vigorous adulthood. It would be practically impossible and morally unthinkable to apply such severe sanctions in a substantial portion of the cases.

The system is thus dominated at every level by official discretion; police, prosecutors, judges, and correctional officials are expected to extend leniency to most offenders lest the system become brutal and the courthouses overloaded. The guilty plea thus provides incentives for the state as well as the defendant. The courts are prepared to try only about ten percent of the cases potentially before them, and prosecutors value convictions obtained without the effort and expense of trial.

The relationship of this system of official discretion, including plea bargaining, with constitutional norms is strained, to say the least. Enforcement of criminal laws in America is predominantly the responsibility of over 3,000 distinct and varying local systems for the administration of criminal justice. The system generally gives a central role to professional police and prosecutorial organizations rather than to the active supervising magistracy that the Fourth, Fifth, and Sixth Amendments apparently contemplated for federal prosecutions.

The dominance of plea bargaining and the discretionary power to bring and dismiss charges tend to reduce the likelihood of direct confrontation between constitutional doctrine and everyday law enforcement practice. Officials are motivated to settle cases in which the lawfulness of their behavior appears likely to be challenged. Moreover, the dominance of discretion permits some rationalization of enforcement policies, better managerial control of scarce resources, and reduction of the uncertainties of trial for both officials and defendants. The system also permits the public at large to avoid facing the contradictions inherent in the penal policies embodied in the criminal codes of most states.

The guilty plea system potentially conflicts with constitutional norms in three principal ways. First, the system is in some tension with due process standards. In America the guilty plea wholly substitutes for a judicial trial. In Europe, the judge typically must conduct an independent investigation of guilt, whether or not the accused confesses. Even before the modern constitutional revolution in criminal justice, the Supreme Court recognized the dangers inherent in convictions based solely upon guilty pleas, insisting in such cases that convictions be based on knowing and voluntary waiver of rights. In a series of decisions between 1960 and 1970 the Court spelled out this requirement in specific terms: an admission of guilt in open court by an accused who is adequately counseled and informed by a neutral judge of his rights and of the possible consequences of waiving them by pleading guilty. This formula requires only a rather formalistic colloquy between defendant and judge in open court to ascertain the accused's knowledge and voluntariness of the plea. It also precludes active participation by the judge in the negotiations that induce the plea, through promises of leniency or threats of severity. It is also understood that bargains, once struck, must be observed by the government. Beyond these requirements due process is satisfied so long as the bargaining is fair according to the standards of commercial bargaining. Thus a defendant may be held to his plea despite his insistence that he is innocent. Troubling issues arise when an accused pleads guilty, despite his belief in his own innocence, because he recognizes the long odds against acquittal and the high risk of a more severe penalty after conviction at trial. Although the Court has held such pleas to be voluntary and to satisfy due process standards, doubts continue regarding the voluntariness of many such pleas.

A second cluster of constitutional concerns about the guilty plea system centers on the question of equal treatment for all similarly situated defendants. The guarantees of due process and equal protection somewhat limit the arbitrary and disparate imposition of punishment. Yet the plea bargaining system grants to some defendants concessions that are unlikely to be extended to all. Indeed, if the concessions were equally available, they would lose much of their force in persuading defendants to plead guilty. Moreover, the process of negotiation operates outside the formal protections of the criminal process, within an area of official discretion that is seldom subjected to independent scrutiny. Opportunities abound for arbitrary discrimination.

The third and most pressing set of constitutional concerns about plea bargaining has received the least satisfactory treatment by the Supreme Court. When a defendant pleads guilty, he waives a host of constitutionally protected rights, including trial by jury or by a judge, the right against self-incrimination, the right to confrontation and cross-examination of witnesses, and the right to challenge evidence against him. Government officials encourage the waiver of these rights by promising reduced punishment, and by threatening greater punishment for those who insist on their constitutionally guaranteed rights. This process appears to be an unconstitutional condition on the exercise of rights.

Despite these constitutional concerns, and despite widespread public dissatisfaction, plea bargaining seems to be a permanent feature of the American system of criminal justice. If the Supreme Court has thus far acquiesced in the system's constitutionality, perhaps the Court is not yet persuaded that a satisfactory alternative has been demonstrated.

Arthur Rossett
(1986)

Bibliography

Rossett, Arthur I. and Cressy, Donald 1976 Justice by Consent: Plea Bargains in the American Courthouse. Philadelphia: Lippincott.

Schulhofer, Stephen J. 1984 Is Plea Bargaining Inevitable? Harvard Law Review 97:1037–1107.

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.