Plea Bargaining: From Patent Unfairness to Transparent Justice.

AuthorBagaric, Mirko


The sentencing system in the United States is in crisis. America imprisons more of its people than any other country in the world by a massive margin --on average five times more than other developed countries. (1) Mass incarceration is arguably the greatest human rights crisis currently in the United States. (2) There arc a number of reasons for this, including overly harsh penalties and mandatory sentences for a large number of offenses. Recent evidence suggests that another major cause of the crisis is the process by which most defendants are sentenced and, in particular, the role of the prosecution in this process. (3)

Most defendants in the United States are not found guilty following a trial. (4) Instead more than ninety-seven percent of federal defendants and ninety-four percent of state defendants are sentenced pursuant to a pica bargain with the prosecutor. (5) As noted by Justice Anthony Kennedy, "the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials." (6) He adds, "horse trading [between the defendant and the prosecution] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." (7) Pica bargaining is so prevalent and one-sided that it has been asserted that "[the] constitutional right [to trial by jury], for most, is a myth." (8)

In nearly all instances, the plea bargain reached by the prosecutor and the defendant is implemented by the court. (9) Prosecution officials are often motivated to push for heavy penalties. (10) In addition to this, they have considerably more negotiating power than defendants, given that they are normally better resourced and their personal interests are not at stake. This imbalance is so profound that it even leads to many innocent defendants pleading guilty and many others accepting harsher penalties than is commensurate with the seriousness of their crimes. (11) Further, studies have shown that minority groups, including African Americans, are dealt with especially harshly by the plea bargaining process. (12)

There is a growing recognition that the pervasive and overly punitive manner of prosecutorial power in plea bargaining is a key cause of mass incarceration. Massachusetts Institute of Technology Economist Professor Peter Temin notes that one of the major causes of increasing prison numbers over the past few decades is the manner in which the plea bargaining process is constructed and in particular the

increasing power of public prosecutors. The number of line prosecutors, that is, those that try cases, rose from 17,000 in 1970 to 20,000 in 1990 and to 30,000 in 2007. The number of public defenders did not rise, and the result was increasing power of public prosecutors. They used their power to seek plea bargains, and jurisprudence moved from the courtroom to the offices of public prosecutors. Prosecutors used their new power to increase the sensitivity of incarceration to the crime rate (13) In a similar vein, Professor Lissa Griffin, an expert in criminal law at Pace University School of Law, and Ellen Yaroshefsky, a professor of legal ethics at Hofstra University School of Law, observe that the dynamics of plea bargaining is an under-researched area of the law and that there is growing evidence that aggressive prosecution practices are a major cause of mass incarceration:

Surprisingly, in looking for the causes and cures for the mass incarceration state, very little, if any, attention has been paid to the role of the most powerful actor in the criminal justice system: the prosecutor. It is the prosecutor who exercises virtually unreviewable discretion in seeking charges, determining bail, negotiating a resolution, and fixing the sentence. Now, however, there is data that identifies aggressive prosecutorial charging practices as the major cause of the explosion in our prison population. (14) It is now widely acknowledged that the pica bargaining process is seriously flawed. (15) At the same time, it has been noted that it is an entrenched part of the criminal justice system and that its abolition is untenable. (16) As noted by Emily Yoffee, an editor at The Atlantic, American legislators have criminalized so many forms of behavior that police are arresting and charging millions of people annually--eleven million in 2015. (17) Court resources have now increased commensurate with this. And "[t]aking to trial even a significant proportion of those who are charged would grind proceedings to a halt.... [T]he criminal-justice system has become a 'capacious, onerous machinery that sweeps everyone in,' and plea bargains, with their swift finality, arc what keep that machinery running smoothly." (18)

Thus, there is a pressing need to reform the plea bargaining system. (19) This Article proposes a fundamental reform of this process that will lead to fairer and more balanced outcomes. This requires some of the influence and power in the process to be removed from prosecutors and allocated to the sentencing judges--who have a more dispassionate and objective role in the sentencing system. We suggest that the sentencing system would be considerably enhanced if there is a legislated discount for defendants who plead guilty. The exact size of the discount would be determined by the sentencing judge, but the parameters of the discount would be between ten to thirty percent of the maximum penalty for the offense. This is similar to the system that currently operates successfully in Australia. In addition to this, a large discount of up to seventy-five percent should apply in circumstances when defendants plead guilty where the prosecution's case is very weak. This larger discount reflects the fact that this cohort of defendants not only saved the community time and money by not exercising their right to trial but also relinquished a tenable chance of acquittal.

Certainly, the reform is not a perfect solution to the imbalance inherent in the plea bargaining process. Prosecutors would continue to have a large degree of influence regarding the ultimate choice of charges. However, their authority regarding the exact penalty would be considerably diminished.

The innovation of our proposal is that it will give considerably more control over the sentencing outcomes to judges without meaningfully over-burdening them, thereby preserving the cost saving benefits stemming from plea bargaining. Moreover, it will lead to the imposition of less severe sanctions and reduce prison numbers without compromising community safety.

In Part I of the Article, we discuss the scope and extent of the current crisis in the United States sentencing system. This is followed in Part II by a discussion of the causes of the crisis, with a focus on the role of prosecution officials. In Part III, we outline our reform proposal. Possible objections to our reform are examined in Part IV. In the concluding remarks, we summarize the reform proposal and the manifest benefits that it would bring to the criminal justice system.


    Prior to discussing the need for reform in the sentencing process, we first provide an overview of the current shortcomings with the United States sentencing system and highlight the need for urgent, systematic reform.

    1. The Alarming Rate of Incarceration in the United States

      The United States incarcerates more people, by a considerable margin, than any other nation. (20) Its incarceration rate is around five times the average of other Organisation for Economic Co-operation and Development ("OECD") countries (21) and up to ten times higher than some Scandinavian countries. (22) The rate of incarceration has grown considerably since the 1970s. (23) It has more than doubled in the fifteen years leading up to 2011. (24) Although there have been some marginal decreases in prison numbers since 2011, (25) estimates show that at the current rate of decline it would take in excess of three decades to return the prison population to the size it was before the climb toward mass incarceration. (26) The magnitude of this mass incarceration crisis was highlighted in a recent report in the New York Bar Association:

      The American criminal justice system currently holds more than 2.2 million people in an estimated 1, 719 state prisons.... No matter how many times the statistics are repeated, they remain shocking: The United States has 4% of the world's population and 21% of the world's prisoners, nearly 40% of whom are African-American. (27) The most obvious, though not exclusive, reason for the mass incarceration crisis has been the increase in the severity of penalties over the past half century. Although different sentencing systems exist between the states and the federal system, (28) they share many common objectives, including community protection, general and specific deterrence, rehabilitation, and retribution. (29) The objective of community protection has assumed paramount importance over the past few decades, (30) which is reflected in part by the increase in harsh prescriptive penalty laws--including fixed, minimum, or presumptive penalties (31)--that apply to varying degrees in all U.S. jurisdictions. (32)

      Sentencing grids are typically used to set out prescribed penalties, which are calculated principally by reference to an offender's criminal history (33) and the seriousness of the offense. (34) There is an abundance of evidence to suggest that the increased adoption of guidelines and mandatory minimums has increased both the rate and duration of incarceration in the face of an overall decrease in crime rate. (35) Studies have demonstrated, for example, that the average duration of prison terms has increased more than thirty percent since the late 1990s (36) and that there has been a four hundred percent rise in prisoners serving life...

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