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The Plea Bargaining Process Essay

Plea bargaining is a commonly used prosecutorial method to dispose of a case without going to trial. A plea bargain or negotiated plea is an agreement between the defense and the prosecutor in which a defendant pleads guilty to a criminal charge and in exchange he expects to receive some form of consideration from the state. (Neubauer, 2002, p. 323) Most cases never make it to trial, more than 80 percent of criminal cases filed ended with the defendant entering a guilty plea. (Fagin, 2003, p. 61)

Plea bargaining became common sometime after the Civil War. The proliferation of cases, in the federal courts, brought on by prohibition was instrumental in the institutionalization of plea bargaining. (Neubauer, 2002, p. 323) It was not until the sixties that plea bargaining became a topic of controversy. This controversy seems to stem from the fact that the name suggests that the courts are bargaining with criminals. But “much of what is characterized as ‘plea bargaining’ often involves the assessment and reassessment of facts….” (Nasheri, 1998, p. 24) After examining all the facts the conclusion might be that there is just not enough evidence to win at trial.

The police and victims are the most likely to object to the negotiated plea because they feel the defendant is not being punished severely enough. The police work hard to collect evidence and securing witnesses to help with the conviction and would like to see the offender prosecuted on the more serious charges. The victim, on the other hand, wants the same thing but for a somewhat different reason, which would be “for revenge or retribution or just the satisfaction that justice has prevailed.” (Fagin, 2003, p. 309) In spite of the reasons against plea bargaining, it is still being used. Why is that?

There are several reasons why a prosecutor, judge and defendant would want to negotiate a plea agreement. For a judge his incentive would be to move along a crowded calendar. Another issue is the fact that jails are overcrowded and they do not want to be faced with the idea of releasing convicted people before their sentence is completed in order to accommodate the recently convicted one. Judges see plea bargaining as a way to ‘process out’ the less serious offenders.

For the defendant, the benefits include a more lenient sentence. If the defendant is denied or cannot afford bail they could be released immediately if a judge accepts the plea. Also, taking a case to trial usually means they would have to wait and that can be stressful, so one would want to resolve the matter as quickly as possible. Another plus is they would have a lesser charge on their record as opposed to a more serious one and since most employers would not hire you with a felony conviction, it would definitely be beneficial to plea to a misdemeanor.

As to the prosecutors, they do not have the resources available to them to take every good case to trial. So they then turn to plea bargaining as a way to deliver justice efficiently. (p. 61) The prosecutor’s office has the responsibility of trial preparation and also has to shoulder the costs that are associated with obtaining evidence and interviewing witnesses among other pretrial preparations. (p. 309) Therefore, the prosecutor will then select which case to take to trial and which to plead out. This is based on whether he thinks he has sufficient evidence to prove every element of the charge. Also, he might not have complete confidence in the witnesses’ testimony or there is a chance the victim might refuse to cooperate at the last minute. Prosecutors also use plea bargaining to reward a cooperating defendant. (Neubauer, 2002, p. 330)

A plea negotiation can be initiated by the prosecutor or the defense attorney. And the process can start anywhere after arraignment and will continue up until the jury comes back with a verdict. The center of the bargaining can be the charges, the counts or the sentence. In charge bargaining, “the prosecutor allows the defendant to plead guilty to a less serious charge than the one filed.” (p. 325) For example, you can plea to robbery instead of the armed robbery that was originally charged. Also some charges are socially offensive and if convicted you would be stigmatized and would be at great risk in prison. For example, a molestation or rape charge might be reduced to an assault charge, which would look better on your record and carries less time. And you would not be labeled as a rapist or child molester.

With count bargaining the defendant will plead to some of the counts listed in the charge. The prosecutor would dismiss the remaining counts. (p. 326) “Count bargaining is often used when the defendant has engaged in essentially a single criminal act but the law specifies several separate and often technical criminal violations.” (p. 326) A reduction in the number of counts would result in a reduction in sentence, since someone charged with multiple counts can receive the maximum sentence.

In sentence bargaining the offender is seeking leniency and the sentence can be anything from probation to life in prison, depending on the severity of the offense. Since the judge is the one who hands out sentences he has to then be included in this negotiation process. (Fagin, 2003, p. 312) The judge’s involvement in a plea negotiation “raises a serious question as to the role of the judge in the adjudication process.” (p. 312) The Federal Rules of Criminal Procedure has stated that negotiated pleas should be done without the courts’ participation. (p. 312) But in some instances the judge will be included in the process.

-Not all pleas are accepted, the plea must have three characteristics in order to be a valid plea.

* It must be voluntary, meaning the defendant was not coerced by the prosecutor or anyone else to enter that plea.

* It must be intelligent meaning the defendant understands the consequences of pleading guilty.

* It must be knowing, meaning the defendant has to be aware of all his options.

The only way to know if a plea is voluntary, intelligent and knowing is that the judge has to ask all the pertinent questions in court so it can be on the record.

The United States Supreme Court also set up guidelines for the prosecutor to abide by because they realize that the plea bargaining process does have room for abuse by the prosecutor. The following are the guidelines set up to avoid prosecutorial vindictiveness.

* He cannot charge or threaten to charge for offences where there is insufficient evidence.

* He cannot charge or threaten to charge for crimes not ordinarily charged.

* He cannot threaten a sentence more severe than normal for similar crimes.

* He cannot fail to grant full disclosure of exculpatory evidence.

With all the different components involved in plea bargaining there is a definite probability of some form of complication. What if the defendant did not understand fully the implications of a guilty plea? What if the prosecutor and/or defendant break their part of the agreement? These questions and more have been brought to the forefront in several landmark cases over the years where the outcome has helped to solidify exactly what is appropriate and what is inappropriate.

The issue regarding the characteristics of what a guilty plea should consist of was brought up in the case of Boykin v. Alabama (1969). Boykin entered a guilty plea without the benefit of competent counsel and the judge did not question him to find out if the plea was voluntary, knowing or intelligent. The decision of the Supreme Court was that the entry of a guilty plea has to be knowledgeable and these facts must be reflected on the court transcripts. (Nasheri, 1998, p. 19) This decision was reversed.

In North Carolina v. Alford (1970), Alford plead guilty but claimed to be innocent and stated he was doing so because he was afraid of the death penalty. “The Supreme Court ruled that it was permissible for a trial court to accept a guilty plea, even though the defendant maintained his innocence, provided that there was some evidence of his guilt, and provided that there was no indication that he had been coerced.” (p. 14) The court affirmed this decision.

In Santobello v. New York (1971), the prosecutor did not honor the promise in the agreement where he was to make no sentencing recommendation. “The Supreme Court held that whether the recommendation had actually influenced the sentence was immaterial.” (p. 23) The fact is that there was a promise made to the defendant that no recommendation would be made and that promise was broken. The court states that the promises made in a plea agreement must be fulfilled. This case was remanded back to the lower court for review.

Is there ever an instance where a prosecutor can be relieved from fulfilling a plea bargaining agreement? The courts stated “if a defendant conceals relevant facts such as a prior felony conviction…or fails to perform an act that was required as part of the agreement…” (Acker & Brody, 1999, p. 610), the prosecutor can then break said agreement. If a defendant enters a plea but commits an offense before sentencing or performs an act that was forbidden by the agreement the prosecutor can definitely not honor his promise.

In Rickett v. Adamson (1987), Adamson plead guilty to second degree murder, instead of first degree murder, which was a capital offense. The agreement was contingent upon him giving testimony against his co-defendants. He refused to testify and the prosecutor reinstated his original charge of first degree murder. The Supreme Court agreed that Adamson did breach the plea agreement and that the state was correct in revoking it. “Adamson’s death sentence was later vacated on other grounds.” (p. 610)

There are a few criticisms against this process. Some people believe that the court is being too lenient because plea bargaining allows for a lower sentence than if the case had went to trial, “yet these lower sentences spring not from institutionalized leniency but from legal standards…” (Mc Coy, 1993, p. XIV). The reason why a negotiated sentence is less is because there are factors involved in the case that demonstrates that the defendant does not deserve the maximum sentence. During the negotiating process these factors are discussed thoroughly and if the case cannot be proven beyond a reasonable doubt, a plea agreement would then be offered.

Another criticism is that plea bargaining is a departure from due process, because when someone decides to plea guilty they are relinquishing their 5th amendment rights against self-incrimination and 6th amendment right to confront their accuser and their right to a trial by a jury. In most cases he is also giving up the right to appeal except in those circumstances where some type of prosecutorial vindictiveness was involved.

Another concern is the fact that the victims are being ignored because of the fact they do not have their day in court to be heard. But the proponents for plea bargaining can retort by saying that the process is being sympathetic to the victim where they would not have to relive the experience by giving their testimony in court. (p. XIV) Also some witnesses might not wish to give testimony in court.

There has been some attempts made to try to eliminate or reduce the cases disposed of by plea bargaining. For instance, California’s proposition 8, the Victims Bill of Rights, was passed in 1982. It misled votes into thinking that it was in support of a ban on plea bargaining. (p. XVII) What it in fact did was speed up the time for the guilty plea to be approved by the courts, which means the cases would not be scrutinized as closely as before. (p. XVII) Therefore it would be done poorly to comply with the time restraints.

In sum, I believe plea bargaining plays an important role in the criminal justice system because it keeps the costs of justice affordable. Without it a prosecutor will stand the risk of losing the substantial time and resources he invested in a case, only to have the defendant be found not guilty by a jury and escape punishment altogether. It does have its disadvantages but overall I believe it should be continued because the advantages outweigh the disadvantages by far.


Acker, J.R. & Brody, D.C. (1999). Criminal Procedure: A Contemporary Perspective. Maryland: Aspen Publishers, Inc.

Fagin, J.A. (2003). Criminal Justice. New Jersey: Pearson Education, Inc.

McCoy, C. (1993). Politics and Plea Bargaining. Pennsylvania: The University of Pennsylvania Press.

Nasheri, H. (1998). Betrayal of Due Process. Maryland: University Press of America, Inc.

Neubauer, D.W. (2002). America’s Courts and The Criminal Justice System. California: Wadsworth/Thomson Learning.

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