Guilty Plea: Plea Bargaining

The claim that plea bargaining is a "practical necessity" derives support from the high percentage of criminal cases resolved by guilty pleas. Nevertheless, plea bargaining opponents sometimes suggest that existing resources could be allocated more effectively by providing less elaborate trials to greater numbers of defendants. They point, for example, to the practices of cities in which the frequent use of informal nonjury trials has resulted in guilty-plea rates far lower than those of other jurisdictions (see Schulhofer). Moreover, they observe that it is difficult to know the extent to which trial rates would increase if plea bargaining were prohibited; a substantial number of defendants lacking plausible defenses might plead guilty without the inducements now provided by plea bargaining.

The most notable American effort to abolish plea bargaining began in Alaska in 1975. Evaluations of this reform by the Alaska Judicial Council five and fifteen years later revealed that "[p]lea bargaining effectively was prohibited in most Alaska cases for about 10 years. The prohibition did not, as far as could be measured, cause major disruption to the justice system. The screening portion of the policy resulted in better police investigations and stronger cases" (Carns and Kruse, p. 317). Although Alaska's plea bargaining prohibition led to a 30 percent increase in the number of trials, the absolute number of trials remained small. A substantial majority of convictions continued to be by guilty plea. Despite the increased trials, court delay was reduced, possibly because of a reduction in the dilatory tactics that plea bargaining had encouraged. The Judicial Council reported that the plea bargaining ban led to substantial increases in sentence severity in some crime categories but to no increases in others. Largely because supervising prosecutors in the mid-1980s did not share the critical view of plea bargaining that had impelled the ban, plea bargaining reemerged in Alaska. The state's plea bargaining prohibition formally ended in 1993.

One plea bargaining reform—that of placing plea agreements "on the record"—has been adopted in nearly all American jurisdictions. In earlier decades, guilty-plea defendants usually were expected to (and did) declare that no promises had been made to induce their pleas. Today the practice of plea negotiation is generally avowed, and the terms of individual plea agreements are often recorded when guilty pleas are accepted.

One common focus of reform efforts is the role of the trial judge. Some reformers advocate substantially less judicial involvement in plea negotiations; others, substantially more. Some reformers also hope to limit the extent of the sentence differential between defendants who plead guilty and those who exercise the right to trial.

Some prosecutors' offices have formulated internal guidelines to regulate plea negotiation and other forms of discretionary decisionmaking. These guidelines have been designed both to reduce discretion and to afford office administrators greater control over their subordinates. Nevertheless, the variables that influence plea negotiation are so numerous and so complex that it is difficult to reduce them to a formula. Many guidelines—for example, those promulgated by the U.S. Department of Justice—have been so general as to provide only minimal constraints on prosecutorial discretion. Moreover, even reasonably specific guidelines sometimes have proven ineffective in practice.