Guilty Plea: Plea Bargaining

Prior to the mid-1960s, most courts and scholars tended to ignore plea bargaining, and when discussions of the practice occurred, it usually was critical. The crime commissions of the 1920s, for example, described plea bargaining as a lazy form of prosecution that resulted in undue leniency for offenders. In 1967, however, both the American Bar Association and the President's Commission on Law Enforcement and Administration of Justice approved the concept of plea bargaining. Like these national study groups and like virtually all American courts, most scholars have tended to approve of plea negotiation, at least in broad outline. One departure from the pattern was the 1973 report of the National Advisory Commission on Criminal Justice Standards and Goals, which recommended the abolition of all forms of plea bargaining within five years.

Plea negotiation raises substantial legal and constitutional issues. For one thing, common law courts traditionally treated a confession as involuntary when it had been induced by a promise of leniency from a person in authority. The application of this rule to plea bargaining would have rendered all bargained guilty pleas invalid. Moreover, a guilty plea waives the constitutional right to trial and subordinates trial rights such as the right to confront one's accusers. Under the "doctrine of unconstitutional conditions," waivers of constitutional rights often are held invalid when they have been required as a condition for receiving favorable governmental treatment.

Despite these substantial issues, the Supreme Court under Chief Justice Earl Warren all but ignored plea bargaining during the period of its "due process revolution." One decision at the very end of the Warren Court era seemed to call certain plea bargaining practices into question (United States v. Jackson, 390 U.S. 570 (1968)). The Supreme Court did not pass directly upon the constitutionality of plea bargaining, however, until 1970 and 1971 when, in a series of cases, it approved the practice. The Court saw the presence of counsel as a significant safeguard of fairness in plea negotiation, and it emphasized that plea bargaining may result in a mutuality of advantage partly because the defendant limits the probable penalty while the state conserves scarce resources (Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970); Santobello v. New York, 404 U.S. 257 (1971)).

The Supreme Court has required that plea agreements be honored, and it has held that certain procedures must be followed in accepting pleas of guilty. The Court also has held that in some circumstances a trial judge constitutionally may accept a guilty plea submitted by a defendant who claims to be innocent (North Carolina v. Alford, 400 U.S. 25 (1970)).

Apart from the legal contentions noted above, critics of plea bargaining have advanced a number of objections to it. They have argued that plea bargaining undercuts the requirement of proof beyond a reasonable doubt and that plea negotiation is substantially more likely than trial to result in the conviction of innocent defendants. They also maintain that plea bargaining results in unjust sentencing. In their view, this practice turns the defendant's fate on a single tactical decision, which, they say, is irrelevant to desert, deterrence, or any other proper objective of criminal proceedings. Some critics maintain that plea bargaining results in unwarranted leniency for offenders and that it promotes a cynical view of the legal process.

Critics of plea bargaining also object to the shift of power to prosecutors that plea bargaining has effected, noting that sentencing judges often do little more than ratify prosecutorial plea bargaining decisions. They maintain that, even more clearly, plea bargaining makes figureheads of the probation officers who prepare presentence reports after the effective determination of sentence through prosecutorial negotiations. Plea negotiation, they say, very frequently results in the imposition of sentences on the basis of incomplete information. In light of the conflicts of interest that beset prosecutors, defense attorneys, and trial judges, the critics sometimes contend that plea negotiation subordinates both the public's interest and the defendant's to the interests of criminal justice administrators. In their view, the practice also warps both the initial formulation of criminal charges and, as defendants plead guilty to crimes less serious than those that they apparently committed, the final judicial labeling of offenses. Finally, critics suggest that plea bargaining deprecates human liberty and the purposes of the criminal sanction by "commodifying" these things—that is, treating them as instrumental economic goods.

Defenses of plea bargaining fall into three main categories. First, some defenders maintain that it is appropriate as a matter of sentencing policy to reward defendants who acknowledge their guilt. They advance several arguments in support of this position—notably, that a bargained guilty plea may manifest remorse, an acceptance of responsibility, or a willingness to enter the correctional system in a frame of mind that may afford hope for rehabilitation over a shorter period of time than otherwise would be necessary.

A second defense treats plea bargaining, not primarily as a sentencing device, but as a form of dispute resolution. Some plea bargaining advocates maintain that it is desirable to afford the defendant and the state the option of compromising factual and legal disputes. They observe that if a plea agreement did not improve the positions of both the defendant and the state, one party or the other would insist upon a trial. These defenders view plea bargaining as essentially indistinguishable from settling a civil lawsuit.

Finally, some observers defend plea bargaining on grounds of economy or necessity. Viewing plea negotiation less as a sentencing device or a form of dispute resolution than as an administrative practice, they argue that society cannot afford to provide trials to all the defendants who would demand them if guilty pleas were unrewarded—or, at least, that there are more appropriate uses for the additional resources that an effective plea bargaining prohibition would require. Sometimes these defenders add that any attempt to prohibit plea bargaining would prove ineffective and would merely drive the practice underground.