Guilty Plea: Plea Bargaining

As the following remarks may suggest, the day-to-day operation of the plea bargaining system cannot be neatly captured in a simple description:

In attending . . . conferences on plea bargaining, I have been struck by the extent to which people who should understand this subject . . . sound like the blind man describing the elephant. One scholar may begin by declaring that plea bargaining usually produces the same result as trial. When two experienced lawyers can use their expertise to predict the probable out-come of a trial, they are very likely to agree; and once this happens, there is no longer any need for the trial to be held. Another scholar then suggests that trial is often a capricious process whose results cannot be predicted. When a case goes to trial one either "wins big" or "loses big." The goal of plea bargaining is not to produce the same result as trial but to "vector" the risks of litigation and to reach a more sensible middle ground. Still another academic then contends that the object of plea bargaining is neither to produce the same results as trial nor to vector the risks of litigation. The goal is to escape altogether the irrationalities of an overly legalized trial system and . . . to achieve "substantive justice" without regard to technicalities. Then [another] lawyer . . . proclaims that all of this misses the point. A lawyer's object in plea bargaining is to take as much as possible from the other side by threat, bluster, charm, bluff, campaign contributions, personal appeals, friendship, or whatever else works. Finally some cynic . . . says that sometimes the dominant motivation is for lazy lawyers and judges to take the money and go home early. Of course, to some extent, all of these things are happening at the same time. The disagreement, if not wholly illusory, merely concerns the relative size of the trunk, tail, legs, ears, and side. (Alschuler, 1981, p. 691 n. 103)

In view of the different forms that plea bargaining may take and the many considerations that may influence it, mathematical models of plea negotiation of the sort developed by economists generally seem artificial to practicing lawyers. A few of the major operational issues are discussed below.

The "sentence differential." Defendants in America plead guilty in overwhelming numbers partly because they believe this action is likely to lead to more favorable treatment than conviction at trial. The U.S. Sentencing Commission reported that, prior to the implementation of the Federal Sentencing Guidelines, the sentences of federal defendants who pleaded guilty were 30 to 40 percent less severe than those of comparable defendants convicted at trial. The Commission's 1987 Guidelines authorized a substantial sentence reduction for a defendant's "acceptance of responsibility," and in 1992, the Commission authorized a further reduction for "assist[ance] in the prosecution of [the defendant's] own misconduct by . . . timely notifying authorities of his intention to enter a plea of guilty." The benefits of both of these "adjustments" are typically added to whatever sentencing benefits a defendant can obtain through charge bargaining and fact bargaining with prosecutors.

Most prosecutors and defense attorneys can describe cases in which defendants rejected plea bargaining offers and then were sentenced far more severely after convictions at trial. In Bordenkircher v. Hayes, 434 U.S. 357 (1978), for example, a defendant charged with forging an $88 check rejected the prosecutor's offer to recommend a five-year sentence in exchange for a plea of guilty. The prosecutor then re-indicted the defendant as a habitual offender, and following his conviction at trial, the defendant was sentenced to a mandatory life term. The U.S. Supreme Court upheld the defendant's reindictment, conviction, and sentence.

At the same time, defendants may be influenced to plead guilty not only by accurate perceptions that more severe treatment will follow convictions at trial but also by inaccurate perceptions, by a desire to avoid the "process costs" of a trial (such costs as the loss of wages resulting from court appearances), by the lack of plausible defenses, and sometimes by remorse.

The significance of case load pressures. It is commonly suggested that the practical inability to provide trials to more than a small minority of defendants accounts for the predominance of plea negotiation. Some scholars, however, have sought to refute the "myth" that case load pressures "cause" plea bargaining (e.g., Heumann).

Financial pressure certainly is not the only reason for plea bargaining, and the reduction or elimination of this pressure would not automatically bring plea bargaining to an end. Prosecutors still would have incentives to bargain in cases in which they doubted their ability to secure convictions at trial and in other situations as well. At the same time, prosecutors and other officials regularly mention case load pressure as one important reason for their plea bargaining practices. The best conclusion probably is that case load pressures are indeed a cause of plea bargaining but not a necessary cause.