Although the U.S. Constitution guarantees all defendants a trial by jury, individuals entering the criminal justice system today have about a one-in-twenty chance of actually undergoing a trial, with the rest of the cases being plea bargained away. While this approach facilitates the disposition of cases in already overbooked courtrooms, plea bargaining has been the source of a growing amount of criticism as a result of its preemption of due process and the perception of the dilution of fines and penalties that are assessed criminals just to speed things up. To determine the facts, this paper provides a review of the relevant peer-reviewed and scholarly literature concerning plea bargaining to identify the arguments in support and against the practice, followed by a summary of the research and important findings concerning these issues in the conclusion.
Review and Discussion
The definition provided by Black's Law Dictionary (1990) states that plea bargaining is "the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval [which] usually involves defendants 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" (p. 1152). "Likewise, according to the definition provided by Neubauer and Fradella (2011), "plea bargaining" is "the disposition of criminal charges by agreement between the prosecutor and the accused" which is "an essential component of the administration of justice. Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part" (p. 323).
In reality, though, there is no universally accepted definition for plea bargaining, but even though some prosecutors deny engaging in the practice, Neubauer and Fradella (2011) suggest that they are simply calling the practice something else. Whatever it is called, there are three basic types of plea bargain agreements: (a) charge bargaining, (b) count bargaining and (c) sentence bargaining (Neubauer & Fradella, 2011). As the terms imply, each of these types involves negotiations between the prosecutor and defense concerning the charges, the number of counts and the sentence that will be assessed (Neubauer & Fradella, 2011).
Plea bargaining first emerged following the Civil War and became predominant during the early part of the 20th century when the number of criminal defendants flooding the criminal justice system threatened to overwhelm the courts (Dervan & Edkins, 2013). By the end of Prohibition, fully 90% of all criminal convictions in the United States were the result of plea bargaining (Dervan & Edkins, 2013). During the remainder of the 20th century, prosecutors increasingly threatened defendants with harsher sentences unless they cooperated and opted for a plea bargained disposition, and, as a result, many innocent defendants were coerced into admitting guilt for crimes they did not commit (Leib, 2014). In 1970, the Supreme Court approved the current plea bargaining arrangement with the understanding that it would not be used to coerce innocent individual defendants to falsely admit their guilt (Dervan & Edkins, 2013).
Critics of the existing plea bargaining system argue that this approach dilutes the individual protections provided defendants, and can result in the erroneous conviction of innocent people while providing few desirable benefits or outcomes for defendants (Neubauer & Fradella, 2011). Indeed, many authorities maintain that plea bargaining compels even highly motivated lawyers to coerce their clients into decisions that are not necessarily in their best interests (Neubauer & Fradella, 2011). In many cases, arguments against plea bargaining boil down to disagreements with what are perceived to be too lenient sentencing regimens in various jurisdictions (Neubauer & Fradella, 2011).
In fact, rather than the operation of due process and trials that are contained in the law books, the predominant activity of American courts today is plea bargaining (Neubauer & Fradella, 2011). In this regard, Neubauer and Fradella (2011) report that, "Bargaining is best understood not as a response to the press of cases but as an adaptation to the realities of the types of cases requiring court disposition. . . . In short, it is neither necessary nor desirable that every defendant have a trial" (p. 327). This assertion is reasonable in light of the types of criminal cases that are handled by many jurisdictions that do not require elaborate legal machinations for resolution, such as driving while impaired or possession of small amounts of marijuana. This is not to say that these crimes do not require adjudication, only that a formal trial is probably not the most efficient use of criminal justice resources. When 95% of the criminal cases in the United States are being disposed of through plea bargaining, though, it is also reasonable to suggest that some bad guys are getting off easier than they should and that American society is paying the price for this efficiency.
Certainly, the courts in the United States are crowded and it may not be logistically possible to provide every defendant with a trial, but the harsh realities are that fully 95% of all cases today are plea bargained away, and only about 5% of defendants in the United States are provided with an actual trial (Roberts, 2013). In fact, because the overwhelming majority of criminal cases in the United States are resolved through plea bargaining, in 2012, the Supreme Court acknowledged that the right to effective assistance of counsel guaranteed by the Sixth Amendment is applicable during the plea bargaining process (Neubauer & Fradella, 2011). In reality, these protections just make sense when the overwhelming majority of all criminal cases in the United States are disposed of through plea bargaining. As Roberts (2013) points out, "After all, in a criminal justice system that is largely composed of plea bargains, what is effective assistance of counsel if it does not encompass effectiveness within the plea negotiation process?" (p. 2651).
Defendants also enjoy other protections through the plea bargaining system. According to Neubauer and Fradella (2011), "Even in cases where a defendant enters a traditional plea of guilty, judges still have the discretion to reject a plea agreement if they find it does not serve the interests of justice" (p. 322). Because the plea bargaining arrangement is widely understood to represent a more efficient resolution method than formal adjudication, most judges tend to rely on the agreements made between the opposing sides and accept plea bargains on their face. As Neubauer and Fradella (2011) point out, "Most judges do not reject the plea agreements negotiated between prosecutors, defendant attorneys, and defendants" (p. 322). In addition, the law provides an opportunity for some defendants to later withdraw their pleas of guilty (Neubauer & Fradella, 2011).
Taken together, it would seem that the plea bargain deck is stacked in favor of defendants and this is likely the case in many situations. In many cases, though, plea bargaining also offers a number of advantages for prosecutors. For instance, there are a number of risks involved for prosecutors, including most especially the uncertainty of the outcome of a trial, and many of the unexpected turns of events during trials can work to the advantage of the defendant (Neubauer & Fradella, 2011). In sharp contrast to the finality and certainty provided by a plea bargain, trials can introduce a number of situations that adversely affect the ability of the prosecutor to obtain a conviction. In this regard, Neubauer and Fradella (2011) emphasize that, "The victim may refuse to cooperate. Witnesses' testimony may differ significantly from earlier statements made in investigative reports. A mistrial could be declared. Even a jury verdict of guilty [can be reversed], meaning that the whole process must be repeated" (p. 313). Prosecutors faced with an overwhelming case load will likely view these outcomes as being sufficiently undesirable to the extent that defendants may be offered plea bargains that are inordinately lenient in an effort to simply clear the books and make room for the next case.
Moreover, prosecutors enjoy a position of strength during plea bargaining negotiations and some even "overcharge" by threatening more serious charges than the case warrants (Neubauer & Fradella, 2011). As Neubauer and Fradella (2001) point out, "In most cases, the state has sufficient evidence for conviction. If, however, the case is weak, the prosecutor can avoid the embarrassment of losing a case at trial by offering such a good deal that the defendant cannot refuse" (p. 313). This observation suggests that some innocent defendants with lengthy criminal records may elect to actually go to prison for a relatively short period of time rather than face the prospect of a lengthier or even life sentence.
While prosecutors enjoy a position of strength during plea bargaining negotiations, defense attorneys are in a weak position (Neubauer & Fradella, 2011). Notwithstanding the potential vagaries of the outcomes involved, prosecutors frequently have sufficient evidence to obtain a conviction at trial and defense attorneys recognize that if they do not persuade their clients to accept a plea bargain,…