Guilty Plea: Plea Bargaining

Prosecutors. In making plea agreements, prosecutors are influenced by a variety of concerns. As mentioned above, one important motivation is the apparent need to induce large numbers of guilty pleas in order to keep criminal case loads within manageable proportions. This administrative concern sometimes leads prosecutors to offer greater concessions in complex cases whose trials are likely to consume substantial amounts of time than in more routine prosecutions.

In addition, prosecutors almost universally report that they consider the strength or weakness of the state's evidence an important bargaining consideration. On the theory that "half a loaf is better than none," they offer greater concessions to defendants who appear to have a substantial chance of acquittal than to defendants without plausible defenses. Indeed, in some situations, prosecutors may bluff defendants into pleas of guilty by concealing case weaknesses that would make conviction at trial impossible. The practice of "bargaining hardest when the case is weakest" may suggest that "the greatest pressures to plead guilty are brought to bear on defendants who may be innocent" (Alschuler, 1968, p. 60).

Frequently, the issue compromised through plea bargaining is not whether the prosecutor has charged "the right person." Rather, the parties compromise a legal issue (such as the admissibility of evidence) or a mixed issue of fact and law (such as intention, causation, insanity, or self-defense).

Prosecutors plainly are influenced by the equities of individual cases (the seriousness of the defendant's alleged crime, the defendant's prior criminal record, and so on). At times, prosecutors are influenced as well by their personal views of the law the defendant is accused of violating. Moreover, although the victim of the crime has been called the forgotten person in plea bargaining, many prosecutors give substantial weight to the desires of victims.

In most of the roles described above, prosecutors enter plea agreements primarily because these bargains seem to offer greater benefit to the state than the alternative of trial. On occasion, however, prosecutors bargain for more personal reasons. Through plea bargaining, a prosecutor can avoid much of the hard work of preparing cases for trial and of trying them. In addition, prosecutors can use plea bargaining to create seemingly impressive conviction rates. The desire to be liked and to enjoy comfortable relationships with coworkers also may influence plea bargaining practices. So may the desire for professional advancement either within a prosecutor's office or after leaving it. Although most prosecutors probably do not deliberately sacrifice the public interest to their personal goals, the bargaining process is beset by conflicts of interest, and prosecutors may rationalize decisions that serve primarily their own interests.

One persistent issue is the extent to which prosecutors "overcharge" in the effort to induce pleas of guilty. Do they charge more serious crimes than the circumstances of their cases seem to warrant, or a greater number of offenses than seems warranted, in an effort to induce defendants to plead guilty to the "proper" crimes? Deliberately filing unfounded charges to gain plea bargaining leverage is undoubtedly rare, but both the likelihood of plea bargaining and other strategic concerns may lead prosecutors to construe the available evidence and to file charges at the highest level that the evidence will permit. Prosecutors often file charges that they intend to press to conviction only when defendants insist on standing trial.

Defense attorneys. Although bargaining with unrepresented defendants once was common, it is now unusual except in traffic cases and other minor cases. In the main, defense attorneys seek to advance their clients' interests through plea bargaining in much the same way that prosecutors seek to advance the public interest. They recommend plea agreements to a client primarily when the concessions that the client has been offered seem to overbalance the client's chances of acquittal.

Again, however, there are substantial conflicts of interest. Private defense attorneys commonly are paid in advance, and their fees do not vary with the pleas their clients enter. Once an attorney has pocketed the fee, the attorney's personal interest may lie in disposing of a client's case as rapidly as possible—that is, by entering a plea of guilty. Even conscientious attorneys may find their judgments colored to some extent by this economic consideration. Moreover, not all defense attorneys are conscientious. "Cop-out lawyers" who plead virtually all of their clients guilty sometimes represent large numbers of defendants for relatively low fees. Some of these lawyers have been known to deceive their clients in the effort to induce them to plead guilty.

Appointed attorneys may suffer a similar conflict of interest. The relatively small amount that an appointed attorney is likely to receive for representing an indigent defendant may seem inadequate compensation for a trial, but this amount may seem substantially less inadequate as a fee for negotiating a plea of guilty.

Unlike private lawyers and other appointed attorneys, public defenders are salaried lawyers whose compensation does not vary with the time their individual cases require. Nevertheless, public defenders are usually overworked, and some defenders seem to view plea bargaining in all but the most exceptional cases as necessary to the effective management of their case loads.

In theory, the decision to enter a plea of guilty is the defendant's rather than the attorney's. Nevertheless, many defense attorneys speak of "client control" as an important part of the plea negotiation process. When clients are reluctant to follow their advice, these attorneys may use various forms of persuasion, including threats to discontinue their representation, in an effort to lead the clients to what the attorneys regard as the appropriate course of conduct.

The serious problem of providing effective representation in the plea bargaining process often has been neglected. Observers simply assume that defense attorneys will perform the protective role the criminal justice system assigns to them and will advise guilty pleas only when these pleas are likely to advance their clients' interests. This view of the defense attorney's role is often more romanticized than real.

Trial judges. Although prosecutors and defense attorneys are the principal actors in the plea bargaining process, judicial participation in this process is far from rare. This participation may take various forms. In some courts, trial judges conduct in-chambers conferences and offer to impose specified sentences when defendants plead guilty. In others, judges offer suggestions to prosecutors and defense attorneys, describe how they have treated certain cases in the past, or indicate a probable range of sentences.

Judges who do not participate in any form of explicit bargaining may engage in implicit bargaining by treating a defendant's guilty plea as a reason for substantially reducing the penalty imposed. Judges may also further the goals of plea bargaining by deferring routinely to prosecutorial plea bargaining decisions. Primarily on the theory that judicial plea bargaining is more coercive that prosecutorial bargaining, some authorities have argued that judges should be prohibited from engaging in this practice. This position has been adopted in rules and appellate decisions in a number of jurisdictions, including the federal courts.