Plea Bargaining

Plea bargaining is widely used in the criminal justice system, yet seldom praised. Plea agreements are troublesome because they are something less than a victory for all involved. Prosecutors are loath to offer admitted criminals lighter sentences than those authorized by law. Likewise, most criminal defendants are less than enthusiastic over the prospect of openly admitting criminal behavior without the benefit of a trial. Despite the reservations of the parties, plea agreements resolve roughly nine out of every ten criminal cases. The sheer numbers have caused many legal observers to question the propriety of rampant plea bargaining.

Some critics of plea bargaining argue that the process is unfair to criminal defendants. These critics claim that prosecutors possess too much discretion in choosing the charges that a criminal defendant may face. When a defendant is arrested, prosecutors have the authority to level any charge if they possess enough facts to support a reasonable belief that the defendant committed the offense. This standard is called PROBABLE CAUSE, and it is a lower standard than ability to prove a charge BEYOND A REASONABLE DOUBT, the standard that the prosecution must meet at trial. Thus, for leverage, a prosecutor may tack on similar, more serious charges without believing that the charges can be proved beyond a reasonable doubt at trial.

Because prosecutors are evaluated in large part on their conviction rates, they are forced to try to win at all costs. According to some critics, prosecutors use overcharging to coerce guilty pleas from defendants and deprive them of the procedural safeguards and the full investigation of the trial process.

For example, assume that a defendant is arrested for trespassing. Assume further that the TRESPASS was an honest mistake and that the defendant was, by happenstance, on the property of a former spouse. In addition to trespassing, the prosecutor may charge the defendant, on the facts, with STALKING and attempted BURGLARY. The prospect of facing a trial on three separate criminal charges may induce the defendant to plea bargain because the potential cumulative punishment for all three crimes is severe. Ultimately the defendant may plead guilty to, and forfeit the right to a trial on, the trespassing charge, the only charge that stands a chance of being proved beyond a reasonable doubt. Such a plea bargain, claim some critics, is an illusory bargain for criminal defendants.

The practice of overcharging is impermissible, and courts may dismiss superfluous charges. However, courts are reluctant to prevent the prosecution from presenting a case on a charge that is supported by probable cause. Prosecutors have discretion in plea bargaining, and they may withdraw offers after making them. A defendant is also free to reject a plea bargain. In many cases, where a plea bargain is withdrawn or rejected and the case goes to trial, the defendant, if found guilty, receives punishment more severe than that offered by the prosecution in the plea bargain. This has been called the "trial penalty" and it is another source of criticism of the plea bargain.

A defendant who goes to trial and is found guilty of a serious felony receives, on the average, a prison sentence that is twice as long as the sentence offered in a plea bargain for the same offense. A defendant cannot be penalized for PLEADING not guilty and going to trial, but the U.S. Supreme Court has not held that it is impermissible to punish defendants with sentences that are longer than those offered in plea agreements. When overcharging and the trial penalty are combined in the regular practice of plea bargaining, defendants have little choice but to plead guilty, and virtually every criminal act may be disposed of without a trial. This, according to some critics, is a perversion of the criminal justice system.

Other critics focus on the benefits that plea bargaining gives to defendants. They argue that plea bargaining softens the deterrent effect of punishment because it gives criminal defendants the power to bargain for lesser punishments. These critics note that experienced criminals are more likely to receive favorable plea bargains because they are familiar with the criminal justice system. According to these critics, plea bargaining subverts the proposition that a criminal should receive a punishment suited to the crime.

Critics of plea bargaining tend to be either scholars or crime victims. Scholars complain of prosecutorial coercion, and crime victims decry the lighter sentences that plea bargaining produces. Defenders of plea bargaining tend to be the players in the system. These are judges, prosecutors, criminal defendants, and criminal defense attorneys. The majority of these persons accept plea bargaining as a necessary tool in the administration of criminal justice. They point out that critics of plea bargaining have no solution to the lack of judicial resources. Without increased funding for more courts, judges, prosecutors, and court employees, plea bargaining is a necessity in most jurisdictions.

In response to the overcharging argument, supporters of plea bargaining note that the prosecutor's discretion in charging is a concept deeply ingrained in U.S. law, and for good reason. A prosecutor is not required to decide the case before trial. Instead the prosecutor is required to press charges based on the facts and to present evidence to support the charges. If there is no reasonable interpretation of the facts to support a certain charge, the charge will be dismissed. The judge or jury makes the final decision of whether the evidence warrants conviction on a certain offense. Defendants may receive harsher sentences upon conviction at trial, but in any case the sentence must be authorized by law. Thus, procedural safeguards effectively protect criminal defendants from the perils of overcharging.

Proponents of plea bargaining also contend that both defendants and society reap benefits. Defendants benefit because both the defendant and prosecutor help to fashion an appropriate punishment. Society benefits because it is spared the cost of lengthy trials while defendants admit to crimes and still receive punishment. Although the punishment pursuant to a plea agreement is generally less severe than that imposed upon conviction after a trial, the process nevertheless produces a deterrent effect on criminal behavior because prosecutors are able to obtain more convictions. Each conviction places a defendant under the super-vision of the criminal justice system, and this decreases the defendant's freedom. Moreover, subsequent convictions after a guilty plea can be punished more harshly because defendants are punished in large part according to their criminal history.