Magazine article Regulation

In Defense of Plea Bargaining: The Practice Is Flawed, but Not Unconstitutional

Magazine article Regulation

In Defense of Plea Bargaining: The Practice Is Flawed, but Not Unconstitutional

Article excerpt

PLEA BARGAINING, LIKE ALL GOVERNment activities, is liable to abuse. Defendants, often too poor to afford their own attorney, unfamiliar with court proceedings, and threatened by the full force of the prosecutor's office, are likely to be very intimidated. They find themselves confronted by experienced and confident officers of the state, in suits and robes, speaking the jargon of the law and possessing wide discretion to engage

in hardball tactics before trial. Prosecutors know how to exploit limits on habeas corpus rights, mandatory sentencing rules, and loopholes that allow evidence collected under questionable circumstances to be admitted. All of this would scare even the most hardened criminal, let alone an innocent defendant. And it could intimidate a defendant into accepting a plea bargain that may not be truly just.

Yet the mere fact that a process can be abused does not necessarily make that process unconstitutional or immoral. Plea bargaining is rife with unfair prosecutorial tactics, and it needs reform. But the process itself is not unconstitutional, nor does it necessarily violate a defendant's rights.


A plea bargain is a contract with the state. The defendant agrees to plead guilty to a lesser crime and receive a lesser sentence, rather than go to trial on a more severe charge where he faces the possibility of a harsher sentence. Plea bargaining is enormously popular with prosecutors; according to researcher Douglas Guidorizzi, something like 90 percent of criminal cases end in a plea bargain.

In recent decades, courts have upheld extreme and unfair prosecutorial tactics in negotiating plea bargains. Last year, in United States v. Ruiz, the U.S. Supreme Court held that the Constitution does not require prosecutors to inform defendants during plea bargaining negotiations of evidence that would lead to the impeachment of the prosecution's witnesses. As Timothy Lynch noted in his 2002 article "An Eerie Efficiency," this rule would allow the prosecution to not disclose during plea negotiations that its only witness was too drunk at the time of the crime to provide any reliable evidence. Such tactics are unfair. If a plea bargain is a contract, it should be subject to the same rules that apply to other contracts, including the requirement that parties disclose relevant information. If a car dealer must tell you that the car he sells you is defective, prosecutors ought to he required to disclose when their cases are defective. But the sad fact that such inappropriate bargaining tactics exist does not obviate the freedom of contract itself.

One argument against plea bargaining is that the Sixth Amendment guarantees a right to a jury trial, not to a faster, more potentially error-prone procedure like plea bargaining. As Lynch has written, "The Framers of the Constitution were aware of less time-consuming trial procedures when they wrote the Bill of Rights, but chose not to adopt them." But that does not prove plea bargaining is unconstitutional. After all, at the time the Sixth Amendment was written, there were no Federal Rules of Evidence, no Miranda rights, no court-appointed attorneys, and no bench trials. The Framers' notion of a "fair trial" differs greatly from ours. The Constitution's limits on criminal procedure are certainly indispensable protections for individual liberty, a great advance over British rule, and a testament to the Founders' greatness--but they only go so far.

The fundamental question is, is the right to a jury trial inalienable? Although some natural rights are inalienable, most rights make sense only if they can be bought and sold. In which category does the right to a trial belong? In early American history, a defendant could waive his right to a jury in felony cases, but by the time of the American Revolution, that practice had died out. In the 1858 case Cancemi v. People, a New York court held that a defendant could not waive a jury trial because, while "the law does recognize the doctrine of waiver to a great extent . …

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