Plea Bargaining Essay

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Plea bargaining is a procedure used to adjudicate criminal charges in lieu of trials. Central to this procedure are offers by government officials (typically either prosecutors or judges) to reduce the amount of punishment those charged with crimes receive if they agree to waive their right to trial and plead guilty. The difference between the amount of punishment that criminal defendants are assigned if found guilty after trials and the amount they receive if they plead guilty is commonly known as the “sentencing differential.” Though forms of plea bargaining exist throughout the world, there is considerable variation in the discretion government officials have to determine the sentencing differential and the flexibility defendants have to negotiate the terms of their guilty pleas. Plea negotiation is relatively unconstrained in the United States, where upwards of 95 percent of criminal cases are resolved without trials. In other countries, government officials have less ability to manipulate the sentencing differential, or legal rules closely govern the plea process. In some countries, those charged with crimes cannot plead guilty, though admissions of guilt typically result in abbreviated trials and are rewarded with sentence reductions.

In the United States, the ability of prosecutors to manipulate the sentencing differential is a function of three main factors: First, they determine the size of the sentence discounts that are offered to defendants. The larger the discount offered, the more attractive the plea deal will be to individuals charged with crimes. Though such discounts must ultimately be approved by the courts, there is evidence that the courts are generally unwilling to tamper with plea agreements worked out between prosecutors and criminal defendants’ attorneys. Sentence discounts as high as 50 to 75 per cent below the statutorily available maximums are not uncommon. Second, prosecutors have largely unchecked discretion in determining which charges to lodge or drop against individuals suspected of crimes. By adding or deleting charges, prosecutors can dramatically increase or decrease the sentences defendants ultimately face. Third, it is widely believed that prosecutors sometimes demand, and judges sometimes levy, so-called trial penalties against criminal defendants who refuse to enter guilty pleas. Trial penalties typically take the form of post-trial sentences that are longer or harsher than they otherwise would be if government officials were not seeking to punish defendants for the exercise of their right to trial.

The combination of sentence and charge discounts, and the threat that by going to trial convicted defendants will not only lose such discounts but incur trial penalties, exerts enormous pressure on criminal defendants to cut their potential losses and accede to guilty pleas. There is lively debate about whether such pressure is tantamount to coercion. Critics of plea bargaining contend that it is. In particular, critics worry that defendants who are, in fact, innocent of some or all of the charges against them will believe that they have no reasonable option except to plead guilty. Plea bargaining’s defenders argue that wholly or partially innocent defendants might not be exonerated at their trials, in which case they will incur longer sentences. Plea deals, therefore, benefit them. They also argue that offers to punish defendants less than their crimes merit leave them better off and so cannot be plausibly construed as coercive.

Some headway in this debate can be made by distinguishing trial penalties from the reduced sentences defendants receive in exchange for guilty pleas. One might term the latter “waiver rewards” in the sense that they offer defendants rewards for waiving their right to trial and admitting their guilt. Trial penalties are different from waiver reward, because they involve punishing (or threatening to punish) defendants more severely not because their crimes have been shown to be more numerous or serious, but because they have exercised the right to trial. Yet, not only is such a right deemed fundamental throughout the world, it is specifically guaranteed by the Sixth Amendment to the U. S. Constitution. Trial penalties, though hard to detect and discourage, are arguably illicit. They worsen the bargaining position of defendants, and, as such, are coercive. However, eliminating or strongly discouraging them would not affect the abilities of prosecutors to manipulate the size of the waiver rewards offered defendants for their guilty pleas.

Whether such rewards grant defendants sentences below what their crimes merit, as some defenders of plea bargaining claim, depends on at least two factors: First, whether the existing sentencing scheme is defensible rather than unduly harsh. If the sentencing scheme is disproportionately harsh to begin with, then waiver rewards, even substantial ones, might do no more than bring negotiated sentences back in line with what offenders actually deserve for their crimes. Second, if defendants have been strategically over-charged in order to put pressure on them to plead guilty, then charge reductions might not produce undeservedly low sentences. Instead, charge reductions might only produce some greater measure of correspondence between individuals’ crimes and their negotiated sentences.

Set to one side the distorting effects of strategic overcharging and disproportionately harsh sentencing schemes, and ask this question: How might the ability of government officials to offer large and variable waiver rewards for guilty pleas be defended? The courts have mostly been attracted to pragmatic arguments, based on the need to maintain an efficiently functioning criminal justice system. The courts assume that trials cannot be provided to all individuals charged with crimes, or even to most of them. Hence, plea bargaining is portrayed as a practical necessity. However, this approach offers scant support for large and variable waiver rewards, as opposed to more modest, fixed ones, for instance. There is little evidence in support of the claim that most criminal defendants would demand trials if smaller, fixed waiver rewards were on offer. In fact, the evidence suggests that the vast majority of criminal defendants see little point to trial adjudication. Criminal justice systems in many other countries have not foundered though government officials there have less ability to offer defendants substantial waiver rewards.

More promising arguments for large and variable waiver rewards draw on familiar retributive or crime reduction approaches to the justification of legal punishment. A common thread to these arguments is that permitting government officials to offer such rewards in exchange for guilty pleas substantially increases the number of convictions that they can obtain. According to the retributive argument, even if large and variable waiver rewards result in many offenders receiving reduced sentences, and so less than they deserve for their crimes, they nonetheless ensure that many more offenders receive at least a portion of the deserved punishment for their crimes. According to the crime reduction argument, the increased number of offenders sanctioned for their crimes makes punishment more certain, thereby strengthening its deterrent signals. The reduced sentences that waiver rewards produce should not be a concern, given the weakness of the evidence concerning the link between deterrence and sentence severity. Further, if more offenders are punished for their crimes, then they will be incapacitated for some period of time, assuming that many of them receive custodial sentences. This, too, will enhance crime reduction.

Both of these arguments can be disputed. Granted, having more offenders receive some of the punishment that they deserve might be a point in favor of large and variable waiver rewards. But retributivists also have to worry about the comparative injustices such rewards produce. Legal scholars have catalogued the wide array of factors affecting negotiated outcomes, many of which have little to do with the seriousness of individuals’ offenses. These factors include how busy prosecutors are, how well they get along with defendants’ attorneys, and the race or class of defendants. The more room there is for negotiation, the more these extraneous (from the standpoint of deserved punishment) factors produce substantial variations in sentences among like offenders. Modest and fixed waiver rewards would reduce these comparative injustices and might garner nearly as many convictions. Again, it seems unlikely that most defendants would elect trial adjudication if waiver rewards were smaller and less negotiable. Moreover, if most elected to enter guilty pleas anyway, then the certainty of punishment would not be substantially compromised and its incapacitation function might be enhanced, as more offenders would serve longer sentences than under large and variable waiver reward schemes.

There also might be dangers in suggesting to would-be offenders that punishment outcomes are negotiable. If one of the functions of the criminal law is to reinforce vital social norms of conduct, then the willingness of government officials to negotiate about punishment outcomes suggests that criminal conduct is more ambiguous in its social disvalue, and so not something to be avoided. Finally, there is the question of whether effecting more punishment is better than effecting less of it, if the aim is to reduce crime. There are persuasive arguments that many existing criminal justice systems overcriminalize conduct, employ disproportionate and often destructive sanctions, and tend to target the undesirable conduct of the poor. Even if large and variable waiver rewards best facilitate the mass production of punishment in such dysfunctional systems, whether this effectively reduces harmful conduct is more uncertain.

Depending on how it is structured, plea bargaining also seems in conflict with the due process values underlying criminal trials. Trials are ordeals for government officials. Criminal defendants are supposed to begin trials with the presumption of innocence. The burden of proving guilt is on the government and it must do so to a high level of certainty—beyond a reasonable doubt. Further, trials are highly ritualized public events, ones in which the government must put its evidence before independent tribunals and endure its contestation by the defense. Trials thus can be seen as moral assurance procedures for the justified infliction of legal punishment. If the government’s case survives the trial ordeal, then society can rest easier with the imposition of criminal sanctions on individuals. However, large and variable waiver rewards enable government officials to circumvent this formidable process. Defendants faced with substantial sentencing differentials might plead guilty, though the evidence against them is well short of satisfying the reasonable doubt standard. So long as the defendants in question are guilty as charged, this unwillingness to put the government’s case to the test might not trouble people much. But some factually innocent defendants might be cowed into pleading guilty, and quite a few factually guilty but overcharged or incorrectly charged defendants might be convinced to plead guilty to charges that inaccurately reflect the character of their criminal conduct.

Whatever the limitations of trials, they require government officials to more closely tailor charges to the evidence they have and then convince an independent tribunal of the strongly persuasive character of that evidence. With plea bargaining, this public, rule-governed procedure is displaced by a more occluded one over which prosecutors seem to have substantial control. One way to reduce their influence would be to strictly limit the magnitude of the waiver rewards they can offer. Doing so would have the salutary effect of making the evidence that they have been able to produce in cases the salient factor in defendants’ decisions about whether to plead guilty or go to trial.


  1. Alschuler, A. “The Changing Plea Bargaining Debate.” California Law Review, v.69 (1981).
  2. Alschuler, A. “The Prosecutor’s Role in Plea Bargaining.” University of Chicago Law Review, v.36 (1968).
  3. Bibas, S. “Plea Bargaining Outside the Shadow of Trial.” Harvard Law Review, v.117 (2004).
  4. Lippke, R. L. The Ethics of Plea Bargaining. Oxford: Oxford University Press, 2011.
  5. Schulhofer, S. “Plea Bargaining as Disaster.” Yale Law Journal, v.101 (1992).

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