Plea Bargaining

• Author: Arthur Rossett
• Pages: 1917-1918

Page 1917

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...