Plea Bargaining

Plea bargaining is a negotiation in which a defendant agrees to plead guilty to a criminal charge and in exchange gets concessions from the state prosecutor. The defendant waives his or her right to a full trial and so loses any chance for acquittal, often avoiding a conviction on a more serious charge and with it a more severe sentence. The state, meanwhile, avoids the costs of a lengthy trial. Issues negotiated in plea bargaining include a specific recommendation for sentence, a reduction of the charge, or agreement by the prosecutor not to oppose a request for bail or probation. Plea bargaining is expressly authorized in statutes as well as in court rules.

The agreement between the defendant and prosecutor is subject to court approval. Generally a plea bargain will be authorized by a judge if the defendant makes a knowing and voluntary waiver of the right to a full trial, the defendant understands the charges, the defendant understands the maximum sentence to be received after pleading guilty, and the defendant voluntarily confesses to the crime in court. Even if a defendant agrees to plead guilty, a judge may reject the agreement if there is no factual basis for the charge or charges.

The judge does not take part in plea bargaining. It is up to the prosecutors to decide whether to offer a plea bargain. However, a prosecutor may not base this decision on unjustifiable standards, such as religion, race or any other arbitrary classification. Prosecutors may offer a plea bargain in some cases in order to save court time. They are often amenable to plea bargaining with a defendant who might be a first-time offender, admits his or her guilt and accepts responsibility for a crime. Prosecutors also accept plea bargains because they always result in a conviction; prosecutors are largely evaluated according to their conviction rates.

While plea bargaining is widely used, it is often disliked by judges, lawyers, police and the public. Prosecutors are sometimes unwilling to offer known criminals lighter sentences than those they might otherwise expect, while, many defendants are not enthusiastic over the prospect of openly pleading guilty without the benefit of a trial and the possibility of acquittal. In spite of the reservations, plea bargaining is commonplace, causing many legal observers to question the propriety of the practice.

According to some critics, plea bargaining is unfair to criminal defendants, because prosecutors possess too much discretion in their choice of the charges that a criminal defendant may face. They claim that prosecutors use overcharging to coerce guilty pleas to lesser offences from defendants, depriving them of the procedural safeguards and the full investigation of the trial process.

Prosecutors may withdraw offers for plea bargaining after making them. A defendant also has the right to reject a plea bargain. In many cases, when a plea bargain is rejected or withdrawn and the case goes to trial, if the defendant is found guilty he or she receives a more severe punishment than the one offered by the prosecutor in the plea bargain. Such a situation is called the "trial penalty" and is another reason why the plea bargain draws criticism. The combination of overcharging and the trial penalty in the regular practice of plea bargaining leaves defendants little choice but to plead guilty. Thus, virtually every criminal act may be disposed of without a trial. This, some critics of the system say, perverts the criminal justice system.

Other critics argue that the deterrent effect of punishment is softened by plea bargaining. They note that experienced criminals are familiar with the criminal justice system and are more likely to receive favorable plea bargains. These critics also claim that the practice subverts the proposition that a criminal's punishment should be suited to the crime.

Critics of plea bargaining tend to be scholars or crime victims. Scholars complain of prosecutorial coercion, while crime victims decry the lighter sentences that result from plea bargaining. Judges, prosecutors, criminal defendants, and criminal defense lawyers tend to view plea bargaining as a necessary tool in the administration of criminal justice.

Plea Bargaining: Selected full-text books and articles

Coercion to Compromise: Plea Bargaining, the Courts and the Making of Political Authority
Mary E. Vogel.
Oxford University Press, 2007
Politics and Plea Bargaining: Victims' Rights in California
Candace McCoy.
University of Pennsylvania Press, 1993
Justice in Plea Bargaining
Zacharias, Fred C.
William and Mary Law Review, Vol. 39, No. 4, March 1998
Plea Bargaining's Triumph
Fisher, George.
The Yale Law Journal, Vol. 109, No. 5, March 2000
Taming the System: The Control of Discretion in Criminal Justice, 1950-1990
Samuel Walker.
Oxford University Press, 1993
Librarian’s tip: Chap. 4 "The Plea-Bargaining Problem"
The Handbook of Crime & Punishment
Michael Tonry.
Oxford University Press, 2000
Librarian’s tip: Discussion of plea bargaining begins on p. 467
The Screening/bargaining Tradeoff
Wright, Ronald; Miller, Marc.
Stanford Law Review, Vol. 55, No. 1, October 2002
Rational Expectations of Leniency: Implicit Plea Agreements and the Prosecutor's Role as a Minister of Justice
Mazur, Eli Paul.
Duke Law Journal, Vol. 51, No. 4, February 2002
Punishing Protestations of Innocence: Denying Responsibility and Its Consequences
Givelber, Daniel.
American Criminal Law Review, Vol. 37, No. 4, Fall 2000
Apprendi and Plea Bargaining
King, Nancy J.; Klein, Susan R.
Stanford Law Review, Vol. 54, No. 2, November 2001
Establishing an Equal Playing Field. for Criminal Defendants in the Aftermath of United States V. Singleton
Ewing, Korin K.
Duke Law Journal, Vol. 49, No. 5, March 2000
Waiver of the Right to Appeal Sentencing in Plea Agreements with the Federal Government
Carney, David E.
William and Mary Law Review, Vol. 40, No. 3, March 1999
Older Offenders: Perspectives in Criminology and Criminal Justice
Belinda McCarthy; Robert Langworthy.
Praeger, 1988
Librarian’s tip: Chap. 9 "The Severity of Sentencing: Do Federal Judges Really Go Easier on Elderly Felons in Plea-Bargaining Negotiations Compared with Their Younger Counterparts?"
Negotiating Justice: Prosecutorial Perspectives on Federal Plea Bargaining in the District of Columbia
Brown, Mary Patrice; Bunnell, Stevan E.
American Criminal Law Review, Vol. 43, No. 3, Summer 2006
Arbitrary Justice: The Power of the American Prosecutor
Angela J. Davis.
Oxford University Press, 2007
Librarian’s tip: Chap. Three "Let's Make a Deal: The Power of the Plea Bargain"
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