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Some critics charge that plea bargaining is unconstitutional, in that defendants essentially are coerced into relinquishing their most fundamental civil liberties-- the right to a trial by jury, guaranteed in Article III and the Sixth Amendment (i.e., the Bill of Rights) of the U.S. Constitution; and protection against compulsory self-incrimination, provided in the Fifth Amendment--by the threat of more severe punishment should they exercise these rights. Given that most trials result in convictions, exercising one's right to trial is a risk that many defendants will be reluctant to take, so they may plea bargain for a lesser sentence rather than gamble that they might be among the few defendants acquitted by a jury. Defendants can also be pressured into pleading guilty because often they would spend more time in jail awaiting trial than if they pled guilty and were sentenced. However, the U.S. Supreme Court has upheld the practice of plea bargaining in a series of decisions, provided the plea is voluntary.

Plea bargaining may also be a source of racial/ethnic, gender, or social class disparities in punishment. Class disparities may result, for example, if wealthier defendants obtain greater plea concessions by hiring more effective legal counsel. This is perhaps most evident in cases involving white-collar or celebrity defendants with substantial resources. Research on the effects of race, ethnicity, and gender on plea bargaining is mixed. Some studies find that minority defendants and males benefit less through plea bargaining than do white or male defendants, but other studies find no differences. Also, some research finds that, among the vast majority of criminal cases, public defenders are as effective as privately retained attorneys.

Plea bargaining also enables prosecutors to circumvent sentencing laws designed to ensure greater uniformity in punishment or that require more severe punishment for certain crimes. For example, most states have adopted mandatory minimum sentencing laws requiring judges to order prison terms for offenders convicted of specific crimes, usually drug or weapon offenses, or for "habitual" offenders. In practice, though, prosecuting attorneys routinely agree to not file charges that would trigger a mandatory sentence if defendants plead guilty. For example, with the exception of California, most states that enacted "three strikes" laws in the 1990s have sentenced relatively few offenders under these laws.

References:

1) Fisher, George. 2003. Plea Bargaining's Triumph: A History of Plea Bargaining in America. Stanford, CA: Stanford University Press.

2) Gottfredson, Michael R. and Don M. Gottfredson. 1988. Decision Making in Criminal Justice: Toward the Rational Exercise of Discretion. 2nd ed. New York: Plenum.

3) McDonald, William F. 1985. Plea Bargaining: Critical Issues and Common Practices. Washington, DC: U.S. Department of Justice, National Institute of Justice.

4) Vogel, Mary E. 2007. Coercion to Compromise: Plea Bargaining, the Courts, and the Making of Political Authority. New York: Oxford University Press.

5) Walker, Samuel. 1993. Taming the System: The Control of Discretion in Criminal Justice, 1950-1990. New York: Oxford University Press.

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