Criminal Justice Process

Relatively few criminal cases go to trial, fewer still are appealed, and fewer yet become the subject of collateral review. Prosecutors refuse to file charges or dismiss charges in a large number of cases. In the cases prosecutors choose to pursue, the majority end not in trial by jury but by a plea of guilty or a successful motion to dismiss. Statistics vary across jurisdictions, but it would not be uncommon for half of all arrests to result either in no charges or in charges that are later dismissed, for 80 percent of the cases that are not dismissed to end in guilty pleas, and for the remaining cases to be tried. The government typically wins a significant but not overwhelming majority of criminal trials; a 70 percent conviction rate at trial would not be unusual.

These statistics reflect the ubiquity of plea bargaining. Plea bargaining involves the prosecutor trading a reduction in the seriousness of the charges or the length of the recommended sentence for a waiver of the right to trial and a plea of guilty to the reduced charges. Both sides usually have good reasons for settlement. In a case in which the evidence of guilt is overwhelming, the prosecution can avoid the expense and delay of a trial by offering modest concessions to the defendant. When the evidence is less clearcut the government can avoid the risk of an acquittal by agreeing to a plea to a reduced charge. Because the substantive criminal law authorizes a wide range of charges and sentences for typical criminal conduct, and because the procedural law allows prosecutors wide discretion in selecting charges, the prosecution can almost always give the defense a substantial incentive to plead guilty.

A defendant who is sure to be convicted at trial is likely to take any concessions he can get. The weaker the government's case the more concessions the government will be willing to offer. For the most part the trial process comes into play when the two sides disagree about the likely outcome of a trial. Thus it is not surprising to see that in cases that are not dismissed a very large percentage end in guilty pleas but that the results of trials are far less one-sided. If trials resulted in convictions in 90 percent of cases more defendants would accept even minor concessions in exchange for a plea. If 90 percent of trials resulted in acquittals prosecutors would offer better deals or dismiss more cases unilaterally.

Plea bargaining is problematic for at least three reasons. First, because the substantive criminal law typically authorizes draconian penalties (the three strikes laws, for instance) the prosecution has the power to present defendants with unconscionable pressures. Imagine a defendant with two prior convictions charged with petty theft. The prosecutor offers to drop a three-strikes charge if the defendant pleads guilty. The defendant must now choose between the risk of life in prison if convicted at a trial or a very short term or a suspended sentence following a guilty plea. Although the Supreme Court has accepted such pleas as voluntary, they have every appearance of being practically coerced.

Second, the prosecution has the incentive to maximize the benefit of pleading guilty in the weakest cases. The more likely an acquittal at trial the more attractive a guilty plea is to the prosecution. Given caseload pressures prosecutors may simply dismiss the weakest cases. But in a borderline case that does go forward the prosecution may very well threaten the most serious consequences to those defendants who may very well be innocent.

Third, the indigent defense lawyers who represent most felony defendants do not have the resources to independently investigate every case. Prosecutors face acute resource limitations as well, but generally speaking the government can afford to go to trial in more cases than the defense. Moreover, the defense frequently must decide which cases to contest based on the evidence collected by the police rather than on the basis of an independent investigation. Despite these troubling dimensions, plea bargaining is the central feature of the adjudicatory process.