Plea Bargaining

Plea Bargaining in the United States

A process whereby the prosecutor and the accused negotiate through his or her attorney a mutually acceptable settlement in a criminal case. The practice of plea bargaining is extensive in the United States. Approximately ninety percent of all criminal cases, both federal and state, are resolved by plea bargain or plea agreement. Plea agreements usually focus on one of the key variables: charge, counts, or sentence.

  • A defendant may agree to plea in exchange for a reduction in the charge. A person originally charged with the felony of larceny, for example, may plead guilty to the reduced charge of shoplifting, a misdemeanor. The shoplift plea is a criminal conviction, but the consequences are far less severe. So, too, are career opportunities for the person with only a misdemeanor as opposed to a felony conviction.
  • Similarly, a defendant may plead guilty to one or more offenses in exchange for the prosecution dismissing other charges or counts. Like the charge bargain, pleading after the dismissal of at least one other count limits a defendant’s sentence exposure.
  • Third, an agreement may be reached on the sentence itself. Since judges retain final authority over sentences, prosecutors cannot formally bind them through a plea agreement. Prosecutors may agree, however, to make particular sentence recommendations to the judge. If a defendant pleads guilty because the prosecutor agrees to recommend probation, the defendant is entitled to withdraw the plea if the judge determines that he or she cannot impose that sentence.

All proposed plea bargains must be accepted by the court before they take effect. If a judge refuses to accept the plea, the case is docketed for trial. (1)

Analysis and Relevance

Plea bargaining is a practice that sparks some controversy. Nonetheless, benefits accrue to both prosecution and the accused to produce a “mutuality of advantage” sufficient to support the high plea rate. For the prosecutor, the plea produces a conviction without expending scarce prosecutorial resources, and a good “track record” of convictions if he or she decides to seek higher elective office. For the defendant, risk is replaced by some level of control and certainty. Like other negotiated settlements, the plea agreement “hedges bets” on both sides. The Supreme Court has reviewed the practice in a number of cases, and rejected the contention that it is unconstitutional. On the contrary, in Santobello v. New York (404 U.S. 257: 1971), the Court spoke of plea bargaining as “an essential component of the administration of justice,” and a practice to be encouraged if it is properly conducted.

Plea bargaining moves cases through the courts, relieving docket pressure that could not be handled through any other means. It is desirable because it produces prompt and largely final dispositions without lengthy pretrial confinement, diminishes the chances of additional criminal conduct by those on pretrial release, and enhances rehabilitative prospects. The procedures by which pleas are made are carefully prescribed. The Federal Rules of Criminal Procedure set forth the steps by which pleas are to be entered in federal courts. The Supreme Court has also set standards. The Court said in Boykin v. Alabama (395 U.S. 238: 1969), for example, that no plea can be taken without a trial judge inquiring into the voluntariness of the plea. If the plea is determined freely and offered intelligently, all elements of the settlement agreement must be honored.

Nonetheless, there are those who are highly critical of pleabargaining because it enlarges the discretion of the prosecutor and heightens the possibility of abusive conduct. Because plea negotiations do not take place in court, judges cannot monitor these cases as they can those that are tried. Finally, plea bargaining is criticized by those who argue that it allows defendants to avoid more serious punishment. (2)

Plea Bargaining Controversy

By Michael Estrin. He is a Los Angeles-based freelance writer and attorney.

With a plea bargain both sides can claim victory. “A deal is a win for the prosecutors because they put someone away,” Saris (a public defendant) says. “That same deal can also be a win for the public defender, because we brought the client’s [sentencing] exposure down dramatically. “And in a real sense, focusing on trial conviction rates is beside the point: Nearly all criminal cases filed in the United States are resolved through negotiated pleas. In companion cases decided in 2012 by a split U.S. Supreme Court, Justice Anthony M. Kennedy acknowledged as much:

“[C]riminal justice today is for the most part a system of pleas, not a system of trials,” he wrote for the majority. “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.” (Lafler v. Cooper, 732 S.Ct. 1376, 1388 (2012); Missouri v. Frye, 132 U.S. 1399, 1407 – 08 (2012).) In Lafler, the Court affirmed a defendant’s constitutional right to effective assistance of counsel during pretrial negotiations, if prosecutors offer the defendant a deal. In dissent, Justice Antonin Scalia argued that the majority ruling “elevates plea bargaining from a necessary evil to a constitutional entitlement.

It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the Court announces in the companion case to this one, ‘it is> the criminal justice system.’ ” (Lafler, 132 S.Ct. at 1397.) Critics of the plea system – including Michelle Alexander, a law professor at Ohio State University and author of The New Jim Crow (The New Press, 2010) – question the fundamental legitimacy of this process. In her book and in recent articles, Alexander argues that widespread plea bargaining unfairly shifts power from judges to prosecutors, undermines a defendant’s right to trial, and effectively fills the nation’s prisons with young black men from inner cities.To outsiders, the way a system of plea bargaining actually works is a mystery. Bargaining is conducted mostly behind the scenes.

Little detail surfaces in open court beyond the defendants’ names, the charges they ultimately plead to, and the sentences they receive. Some pleas take up 20 minutes of court time; others might be accepted in less than 2. Usually, there is no public record of pretrial negotiations, or of what pressures drove prosecutors and defense counsel to make a deal.Defendants who have been arraigned may opt for “fast track” proceedings in early-disposition court. There, pleas move so fast the judge usually tells the defendants they may remain seated. Lawyers mill about, defendants free on bail wait restlessly, and judges race through boilerplate waivers. When Alexander writes about the staggering volume of human souls being pumped through the criminal justice system, this is what it looks like.

“Not being able to make bail definitely makes people more apt to [plead] – especially in misdemeanor cases – because often you can [plead] and be released soon after,” Saris says. “In felony cases, the inability to make bail puts all kinds of stresses on clients.”

Many public defenders I spoke with expressed tremendous concern that they had represented clients who took a deal just to get out of jail. But when I asked former prosecutors if they thought a defendant’s inability to make bail gave them unfair advantage, some were unsympathetic.

“It’s true … that having a defendant in custody gives prosecutors leverage in forcing a plea bargain,” says former deputy DA Gorin. Still, “I do not believe many innocent people plead guilty just to get out of jail.”

“Economic inequality is a philosophical issue,” Santini says. “It’s not a problem the criminal justice system is meant to deal with.” She notes that many defendants choose to delay going to trial – whether they’re in custody or out on bond – because criminal cases often weaken over time. “It’s a perfectly valid and common defense tactic,” she says.

That being in custody provides leverage might be an understatement. Richard La Fianza, a deputy public defender in San Bernardino, wrote last year in the Los Angeles Daily Journal: “While your trial will probably start within 90 days, it could take up to twice as long, especially if your case is dismissed and re-filed. … Because people do not want to lose their jobs, their homes, their credit; because they do not want their children taken from them; because they have sick parents who need their support, innocent persons are routinely pleading guilty to felonies” if they can’t post bail.

In her podcast on pleas, Saris describes a 2012 study by two law professors that was designed to replicate the pressures and choices defendants may face. (Lucian E. Dervan & Vanessa A. Edkins, Plea Bargaining’s Innocence Problem, 103 J. CRIM. L. & CRIMINOLOGY 1 (2013).) Accused of cheating on a psychological test, dozens of Florida college students in the study were offered two choices: Admit guilt and forgo compensation, or proceed to a disciplinary trial and risk academic punishment. More than 90 percent of the students who cheated took the offer – but so did nearly 60 percent of the students who hadn’t cheated.

“A lot of people believe they would never confess to something they didn’t do, no matter what,” Saris says in another of her podcasts. But having reviewed the many studies on false confessions, she adds, “Some defendants get to a point where they think, ‘I’m going to say what you want me to say so I can go home.’ I’ve heard that quite a bit in my career.”

In the United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled “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 (read more about Constitutional law entries here).

Plea Bargaining Explained


See Also

  • Criminal Law
  • Criminal Procedure

Plea Bargaining


Further Reading

  • Alaska's Ban on Plea Bargaining Reevaluated, Carns, Teresa White and Kruse, John A., 75: 310-317 (Apr.-May '92, AJS Judicature)
  • Can We Legitimize Plea Bargaining (query), Miller, Herbert S., 61: 249, 294 (Dec.-Jan. '78, AJS Judicature)
  • Critical Issues In The Courtroom: Exploring a Hypothetical Case, Author, No, 72: 12-22 (Jun.-Jul. '88, AJS Judicature)
  • Judicial Supervision of the Guilty Plea Process: A Study of Six Jurisdictions, McDonald, William F., 70: 203-215 (Dec.-Jan. '87, AJS Judicature)
  • NJ Court Confirms Judge's Plea Discretion (news), Author, No, 60: 47 (Jun.-Jul. '76, AJS Judicature)
  • Plea Bargaining: An Offer A Prosecutor Can Refuse, Bayley, Christopher T., 60: 229-232 (Dec. '76, AJS Judicature)
  • Plea Bargaining: Can Alaska Live Without It?, Rubinstein, Michael L. and White, Teresa J., 62: 266-279 (Dec.-Jan. '79, AJS Judicature)
  • Plea bargaining—A necessary tool for the International Criminal Court prosecutor, Author, No, 94: 178-185 (Jan-Feb '11, AJS Judicature)
  • Policymaking by Prosecutors: The Uses of Discretion in Regulating Plea Bargaining, Worden, Alissa Pollitz, 73: 335-340 (Apr.-May '90, AJS Judicature)
  • Sentencing, A Judicial Function (letter), Crush, Thomas H., 60: 309 (Feb. '77, AJS Judicature)
  • Should Judges Explain the Indirect Consequences of a Guilty Plea (query), Schepps, David B., 61: 398-399 (Mar. '78, AJS Judicature)
  • State Can Increase Charges For Those Who Demand A Trial (news), Author, No, 62: 102 (Aug. '78, AJS Judicature)
  • Tell Defendants That Parole Is Mandatory, Court Insists (news), Author, No, 62: 149 (Sep. '78, AJS Judicature)
  • Resources

    Notes and References

    1. Definition of Plea Bargaining from the American Law Dictionary, 1991, California
    2. Id.

    See Also

    • Beyond a Reasonable Doubt
    • Criminal Law
    • Criminal Procedure
    • District Attorney
    • Prosecuting Attorney
    • Due Process of Law
    • Probable Cause
    • Jury (Criminal Process).

    Further Reading

    Further Reading (Articles)

    • Plea Bargaining’s Triumph, The Yale Law Journal; March 1, 2000; Fisher, George
    • Plea Bargaining: An Overview, Mondaq Business Briefing; November 5, 2013; Nayak, Sugandha
    • Abolishing plea bargaining: An end to the same old song and dance, American Journal of Criminal Law; July 1, 1999; Palmer, Jeff
    • Plea Bargaining, Gale Encyclopedia of Everyday Law; January 1, 2006
    • Plea Bargaining’s Triumph: A History of Plea Bargaining in America.(Book Review), Michigan Law Review; May 1, 2004; Bibas, Stephanos
    • Justice in Plea Bargaining, William and Mary Law Review; March 1, 1998; Zacharias, Fred C.
    • Screening versus Plea Bargaining: Exactly What Are We Trading Off?, Stanford Law Review; April 1, 2003; Lynch, Gerard E.
    • To plea or not to plea: the benefits of establishing an institutionalized plea bargaining system in Japan. Pacific Rim Law & Policy Journal; June 1, 2011; Prakash, Priyanka
    • The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation, 1830-1860, Law & Society Review; January 1, 1999; Vogel, Mary E.
    • ‘Need to understand plea-bargaining case’, Hindustan Times (New Delhi, India); March 12, 2007
    • The Relationship between Public Perceptions of Crime Seriousness and Support for Plea-Bargaining Practices in Israel: A Factorial-Survey Approach, Journal of Criminal Law and Criminology; September 22, 2003; Herzog, Sergio
    • Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure, American Journal of Criminal Law; July 1, 2006; Langer, Máximo
    • The Relationship between Public Perceptions of Crime Seriousness and Support for Plea-Bargaining Practices in Israel: A Factorial-Survey Approach, Journal of Criminal Law and Criminology; October 1, 2003; Herzog, Sergio
    • Bargaining with Defensive Homicide: Examining Victoria’s Secretive Plea Bargaining System Post-Law Reform, Melbourne University Law Review; December 1, 2011; Flynn, Asher Fitz-Gibbon, Kate
    • Incompetent Plea Bargaining and Extrajudicial Reforms, Harvard Law Review; November 1, 2012; Bibas, Stephanos
    • Effective Plea Bargaining Counsel, The Yale Law Journal; June 1, 2013; Roberts, Jenny
    • Plea Bargaining – a Necessary Tool for the International Criminal Court Prosecutor, Judicature; January 1, 2011; Rauxloh, Regina E.
    • POLITICS-JAMAICA: EXPERTS GENERALLY SUPPORT PLEA-BARGAINING PLAN, Inter Press Service English News Wire; May 3, 2002; Dionne Jackson Miller
    • Debating the pros and cons of plea bargaining. Florida Bar News; July 15, 2003; Blankenship, Gary

    Plea Bargaining in relation to Crime and Race

    Plea Bargaining is included in the Encyclopedia of Race and Crime (1), beginning with: Plea bargaining is an admission of guilt in exchange for a reduced charge or sentence. It is arguably one of the most publicized and controversial manifestations of the courtroom. Affecting practically every phase of the criminal justice system, plea bargaining is used as a substitute for jury trials, disposing of almost 90% of criminal cases. Those who favor this type of case disposition argue that without plea bargaining, the entire criminal justice system would collapse under the weight of an excessive caseload. On the other hand, those who oppose plea bargaining argue that it erodes the foundation of the judicial system. The truth, however, is that the viability of plea bargaining is determined by members of the so-called courtroom work group: judges, defense lawyers, and prosecuting attorneys. The point to be made here is that members of this work group determine the prevalence and frequency of plea bargaining.

    Plea Bargaining Explained


    See Also

    • Criminal Law
    • Criminal Procedure


    Notes and References

    1. Entry about Plea Bargaining in the Encyclopedia of Race and Crime

    See Also

    Plea Bargaining in the context of Juvenile and Family Law

    Definition ofPlea Bargaining, published by the National Council of Juvenile and Family Court Judges: Negotiation of an agreement between prosecuting and defending counsel, often with the agreement of the court, to have the accusect plead guilty to certain reduced charges in return for the dismissal of others, or for a reduced disposition or penalty.


2 responses to “Plea Bargaining”

  1. International Avatar

    The plea bargain raised, for me, no fundamental issues regarding the criminal justice system. Where I see fundamental issues being raised daily is the manner in which the system discriminates against middle class defendants, not the poor or the rich. For example, charged with even a DUI, a poor person can proceed to trial with minimal financial exposure and virtually no sentencing exposure. So it is with the rich. A middle class person, however, denied access to the “free” services of the public defender must balance against the desire to present a defense the Ten or Fifteen Thousand Dollars a trial can cost – out of pocket and up front and in cash. These middle class defendants, therefore, face a very different imperative when it comes to deciding whether or not to take a prosecutor’s offer than does a defendant from the other two economic groups. Ironically, the middle class defendant also pays the taxes necessary to fund the “free” defense of the purportedly indigent defendant. I also note that the fact that the writer, with access to so many public defenders, wasn’t able to come up with a story of an objectively innocent person entering into a plea bargain. That failure seems to demonstrate that such an example must be close to impossible to find.

  2. James Mercy Avatar
    James Mercy

    The writer fails to mention that the services of the Los Angeles County Public Defender are not free. At the end of the case you are financially assessed, and if you are found to have an ability to pay, you are required to reimburse the County for the cost of your defense. The Public Defendant’ $150K annual salary has to come from somewhere, and it is not just from county property tax revenue. For a case you may be paying the Public Defender’s Office something like $80 per hour. And if you fail to pay, the court system will take your state tax refund. Instead of being personally assigned a top level Death Penalty qualified defender, the vast majority of defendants like him will be represented by one attorney at arraignment, a different one at early disposition, another one at their preliminary hearing, and yet another one for pretrial and trial. And they will not receive personal visits while they are in jail — instead they will be given video conferences with “their” attorney.

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