Fixing the plea bargaining process is an essential criminal justice reform
Photo 103695803 © Pattanaphong Khuankaew |


Fixing the plea bargaining process is an essential criminal justice reform

Plea bargaining is overused and abused, often to the detriment of justice.

In a 1789 letter to Thomas Paine, Thomas Jefferson wrote, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Today, Jefferson’s vision often goes unfulfilled in the United States. Rather than enjoying their right to trial by jury, over 90 percent of criminal defendants have their cases resolved through plea bargaining, a process in which they make an agreement with a prosecutor to plead guilty and waive their right to a jury trial in exchange for a more favorable sentence. 

Prosecutors use plea bargaining to make the justice system more efficient, secure convictions for those they believe to be guilty of crimes, and incentivize individuals to testify against defendants accused of more serious crimes in exchange for a reduced sentence. However, that 90 percent figure demonstrates that plea bargaining is currently overused and abused, often to the detriment of justice.

Many innocent individuals are frightened by severe sentences handed out by our criminal justice system. And, sadly, some people charged with crimes who can’t afford the bail to get out of jail while awaiting trial often see pleading guilty and doing a short time in jail as the best way to get back to their families much faster than spending an unknown and possibly lengthy of time in pre-trial confinement, even if they think they are likely to be found not guilty when their trial eventually occurs. 

By far the most serious harm of plea bargaining is its de facto coercive effect on defendants. In general, defendants receive lighter sentences when they accept plea bargains than when they insist on exercising their right to a jury trial. Prosecutors have an incentive to “bluff” defendants into believing that a jury trial will result in a harsh sentence even if they lack the admissible evidence to actually secure a conviction at trial. The problem with this system is that some defendants may not be guilty of the crime with which they are charged, or there may be legitimate questions about their guilt in light of the prosecutor’s scant or improperly obtained evidence. In other words, people who do not belong in jail may end up serving time behind bars solely because a prosecutor scared them into believing that taking the deal was their best option.

The ability to mount such bluffing efforts is symptomatic of a larger imbalance between defense and prosecution in the United States justice system. Prosecutors have the element of fear squarely on their side, while criminal defendants are often represented by overloaded public defenders and held in pretrial detention. As Human Rights Watch notes in the Los Angeles Times:

“Hundreds of times a day, people accused of crimes plead guilty, not because they don’t want a trial, but because the judge sets a bail they cannot pay, and they cannot risk the harm to their lives caused by spending days, weeks, even months in pretrial detention.”

Prosecutors may offer bargains in which a defendant is sentenced only to time served and therefore released as soon as the deal is approved while at the same time arguing that the defendant is too much of a risk to public safety to be released for affordable bail or on their own recognizance. This system puts criminal defendants, particularly those with very limited financial means, in the dilemma of accepting a criminal record for a crime they claim to have not committed or losing their place in the outside world by waiting in pretrial detention for months. In the U.S., the average time to disposition is over eight months—256 days—for felony cases and 193 days for misdemeanor cases.

Some would suggest it is uncommon for innocent people to be arrested, which could help to explain the prevalence of guilty pleas. But exonerations tell another story. According to the National Registry of Exonerations, 261 of the 1,700 felons exonerated since 1989 were convicted due to guilty pleas. Of the approximately 300 people whom the Innocence Project has proven were wrongfully convicted, at least 30 pleaded guilty. These numbers point to the possibility that 10-20 percent or more of the people who plead guilty are actually innocent, which, when multiplied by the two million currently incarcerated individuals convicted as a result of plea bargains, could translate to 20,000-40,000 innocent people in prison. While this statistic suggests that plea bargains do not account for the majority of wrongful convictions—or at least not the majority of those in which the conviction is provably wrong and results in an exoneration—it nevertheless indicates that the current plea bargaining system contributes to the criminal justice system’s violation of the basic premise of justice. The premise was articulated by Sir William Blackstone, who said, “It is better that 10 guilty persons escape than that one innocent suffer.”

Plea bargaining’s violation of this principle is ostensibly restrained by the practice of judicial colloquy, in which a judge is required to ensure three things about a defendant entering a guilty plea.

First, the defendant must be aware of the nature of the charge against them.

Second, the defendant must be aware of any potential penalties arising from conviction.

Third, and finally, the defendant must understand that they have a right to a jury trial and that a guilty plea waives this right.

Notably, this colloquy never demands that the prosecutor produce evidence that would be sufficient for a conviction at trial by meeting the standard of proof “beyond a reasonable doubt.” Instead, defendants need only admit to “facts” supporting their conviction or, in the case of an “Alford plea,” may even enter a guilty plea while asserting their factual innocence. Since the prosecutor need not marshal sufficient evidence for proof beyond a reasonable doubt, defendants who take plea bargains effectively waive not only their right to a jury trial but also their right to have the assertion of their guilt subjected to the most rigorous burden of proof in the common law system.

Other common law countries provide alternative models of plea bargaining which may be worth considering. New Zealand’s model is particularly noteworthy for its statutory formalization of the bargaining process.

In New Zealand, plea bargains are referred to as “sentencing indications” because they focus on an argument over the sentence recommended to the judge. After each side presents their case at a hearing, the judge rules on the proper sentence for the defendant, and the defendant may at this point accept the sentence by pleading guilty or decide to proceed to trial after all.

A key difference from the American system is that the defense may challenge a fact alleged by the prosecution, at which point the judge calls a “disputed fact hearing” that serves almost as a miniature bench trial in which the judge ultimately rules on which facts can actually be proven by the prosecution. Though they occur infrequently, disputed fact hearings work to restore the right to due process in factfinding that defendants in the United States effectively forfeit when they take a plea deal. Since the prosecution must work within strict statutory limits and cannot overcharge defendants to “bluff” them as easily as in the United States, defendants have a much more honest choice between going to trial and pleading guilty.

Another possible criminal justice reform, though it would involve a lot of significant tradeoffs, is the complete abolition of plea bargaining. From 1969 to 1973, the Philadelphia District Attorney’s office pioneered a policy of complete abolition of plea bargains. The results were mixed. Instead of clogging courts as some legal commentators had predicted, the reform caused Philadelphia’s prosecutors and defense attorneys to bargain over whether the defendant would elect a jury trial or a bench trial. The reform thus preserved the presumption of innocence to a greater degree than traditional plea bargaining, but it nevertheless maintained the possibility of effective coercion into waiving one’s right to a jury trial. The experiment exposed what seems obvious—plea bargaining can be a very valuable justice tool, but it is also easily abused. The trick is to establish the right framework and incentives to achieve the benefits and reduce the harms.

In another reform, in 1975, the attorney general of Alaska prohibited plea bargaining, but the Alaska Judicial Council found that in the two years following this decision, guilty pleas had only decreased from 94 percent of cases to 92 percent. This evidence also weighs against the idea that ending plea bargaining would clog the courts, but it raises concerns that other methods of prosecutorial coercion or excessive sentencing could have been at work in inducing so many guilty pleas, meaning that plea bargaining reform would need to be tackled alongside bail reform, sentencing reform, and improvements to the public defender system.

Abolition of plea bargaining would also leave defendants without a way to trade testimony for reduced sentences—something that would be good from the standpoint of improving the reliability of co-conspirator testimony but bad from the standpoint of forcing some, especially those convicted of some nonviolent offenses, to serve full sentences that may be inappropriately long.

Ultimately, plea bargaining reform is a much-needed component of criminal justice reform. As Cato Institute’s Clark Nelly noted, plea bargaining is effectively a kind of “McJustice” in which the criminal justice system prioritizes efficiency over the fundamental rights of defendants.

We should look at experiments in other countries and in the United States to find a system to reform plea bargaining that avoids court clog while enhancing the due process rights of those accused of a crime. Suspects are considered innocent until proven guilty, and that principle should apply throughout every case.