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Plea bargaining

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Description: Process of negotiations through which criminal cases are adjudicated without the defendants exercising their right to trial.


Significance: In the last third of the twentieth century, the Supreme Court formally sanctioned the process of plea bargaining, which had been practiced for many years, and ruled on the acceptability of procedures governing it.


Plea bargaining is the process engaged in by prosecutors and defense attorneys in criminal cases to attempt to arrive at satisfactory dispositions of cases without the need to conduct trials. Such dispositions may result in tangible benefits for prosecutors, defendants, and the criminal justice system as a whole. Prosecutors gain certainty that defendants will be convicted, reduce their caseloads, and avoid having to put the victims of crimes and other witnesses through the ordeal of trials. Defendants usually receive reductions in the charges they face or sentences they receive in return for their agreement to plead guilty. The criminal justice system saves a great deal of time and money in avoiding trials, especially jury trials. Critics argue that plea bargaining turns the justice system into a marketplace in which such fundamental protections as the right to cross-examine one's accuser, the right to a jury trial, and the requirement that the prosecution prove guilt beyond a reasonable doubt are largely ignored. They claim that plea bargaining is tantamount to punishing defendants who exercise their constitutional right to trial, because such defendants incur heavier sentences than those who plead guilty. Beginning in the latter part of the twentieth century, the Supreme Court made clear that, done properly, plea bargaining was an accepted part of the criminal justice system. Although invalidating the plea of guilty in the particular case before it, the Court, in Boykin v. Alabama (1969), suggested that adjudications of guilt based on guilty pleas were constitutional if adequate safeguards for protecting defendants’ rights were present. The Court declared in Santobello v. New York(1971) that plea bargaining is an “essential component of the administration of justice” and something to be “encouraged.” In Brady v. United States (1970), the Court held that even when a defendant pleads guilty to avoid the possibility of receiving the death penalty if convicted at trial, such a plea is not unconstitutionally coercive.


Plea Bargains as Contracts

Plea bargains have often been compared to contracts, and the Court has been confronted with plea bargaining issues that mirror to some extent contractual questions. Still, the Court's decisions reflect the view that there are differences between the correct legal approach to contracts that are breached and to plea bargains that are not honored. In Santobello, the defendant, in exchange for his plea of guilt, had bargained for the prosecutor to make no recommendation at the time of sentencing. However, a different prosecutor, unaware of his colleague's earlier promise, recommended to the judge that the defendant receive one year in jail. The judge imposed the one-year sentence and claimed his decision was made independent of the prosecutor's improper recommendation. The Court invalidated the plea, holding that the defendant was entitled to what he had bargained for, a sentence absent any prosecutor's recommendation. Unlike most contract cases, however, the Court did not require that the victim of the broken promise be allowed to choose his remedy. Instead, the Court left it to the state court to decide if the interests of justice would be best served by allowing the defendant to withdraw his plea, as he preferred, or only to have the defendant resentenced before a different judge. In Mabry v. Johnson (1984), the Court held that the prosecutor was able to withdraw an offer that he made and that was accepted by the defendant as long as the plea of guilty had not yet been formally taken in court.


Knowing and Voluntary Pleas

The Court expressed a strong interest in ensuring that defendants who plead guilty and waive their right to trial do so in a manner that is voluntary and knowing. In Boykin, the Court held that if defendants are not informed that their guilty pleas waive their rights against compulsory self-incrimination, to confront their accusers, and to a jury trial, that their pleas are unconstitutional. Boykin and the judge who accepted his plea did not discuss these issues. Even when such a discussion takes place, the plea may be invalidated as being involuntary or unknowing. In Blackledge v. Allison (1977), the Court held that even when defendants waive their rights in court, such waivers may be deemed invalid if they are merely a formulaic series of responses that fail to show that defendants understand an important component of the bargaining process. Another aspect of the requirement that a guilty plea be knowing and voluntary relates to the connection that must be shown between the criminal conduct admitted by the defendant and his understanding of the elements of the crime to which he is pleading guilty. In Henderson v. Morgan (1976), the Court held a guilty plea to be involuntary when the defendant admitted he stabbed the victim to death but never acknowledged that he intended to kill her. An intent to kill was a required element for the second-degree murder charge to which the defendant pleaded guilty.


Triumph of the Marketplace

Some claim that in a desire to encourage guilty pleas, the Court has traveled a long way in allowing the values of the marketplace to govern the bargaining process. In Bordenkircher v. Hayes (1978) the Court upheld the decision of a prosecutor to have a defendant reindicted so as to face a heavier sentence after the defendant rejected the prosecutor's offer of a plea agreement. The Court, in a 5-4 decision, held that such practices are merely legitimate aspects of the bargaining process. In North Carolina v. Alford (1970), the Court permitted a plea to stand even when the defendant claimed to be innocent of the crime to which he pleaded guilty. Where the prosecutor, the defendant, and the judge all agree to a certain disposition, the Court is unlikely to intervene.



Further Reading

  • Fisher, George. Plea Bargaining's Triumph: A History of Plea Bargaining in America. Stanford, Calif.: Stanford University Press, 2003.
  • Herman, G. Nicholas. Plea Bargaining. Charlottesville, N.C.: Lexis Law, 1997.
  • Heumann, Milton. Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys. Chicago: University of Chicago Press, 1978.
  • McCoy, Candace. Politics and Plea Bargaining. Philadelphia: University of Pennsylvania Press, 1993.
  • McDonald, William F., and James Craven. Plea Bargaining. Lexington, Mass.: Lexington Books, 1980.
  • Vogel, Mary E. Coercion to Compromise: Social Conflict and the Emergence of Plea Bargaining, 1830-1920. Rev. ed. New York: Oxford University Press, 2005.