Crime and Justice

Plea Bargaining: Part II

This is part II of a five-part series that was written for a term paper in my Criminal Justice class this semester. The first part was an overall introduction, this second part looks at potential benefits, the third part at negatives, and the fourth part at disparities regarding race and gender in plea bargaining. The final part will be a personal conclusion.

Part I can be found here.


As a preliminary to discussion of the potential and known benefits of plea bargaining, an imaginary case may create some context for the discussion. A young girl is molested by a man, who confesses after he is confronted by the police. However, at the grand jury’s empanelment, his lawyer enters a plea of not guilty. In this case, should it come to a trial the girl would have to sit in front of a jury and tell her tale in a room full of strangers, and her attacker. For her, a plea bargain on the case of the defendant would be a mercy. In another case, one that went before the Supreme Court, one Henry Alford, fearing the death penalty, plead guilty to obtain a life sentence, instead. He chose life over death, while protesting his innocence (Bibas, 2003).

As the justice system participants see it, plea bargaining offers several benefits. By convincing defendants to plead out, short of a trial, the costs in terms of time and money are greatly reduced. Defendants who plead are admitting some sort of guilt, assuaging the drive for justice that our entire system is built around. “’Plea bargaining’ refers generally to defendants giving up their trial related constitutional rights and pleading guilty in exchange for prosecutorial concessions, like lighter sentences and dismissals of charges. Nearly all federal convictions (ninety-seven percent) and state convictions (ninety-five percent) result not from trials, but from guilty pleas.” (McConkie, 2015).

In 1985, approximately 35 billion dollars was spent on police, public defenders, correctional programs, and other components of the justice system (Cohen, 1988). Thirty years later, the Bureau of Justice Statistics reports “Nation spends $167 billion on criminal and civil justice services: Since 1982, Justice expenditures average 8 Percent growth annually” (Bureau of Justice Statistics, 2004). While plea bargaining may not reduce the number of inmates in prisons, reductions in the length of sentences garnered through pleading will in the long term reduce costs. The obvious reduction of trial costs, which are not inconsiderable, as well as the reduction of the workload on lawyers, prosecutors, judges, and support staff are also to be counted in the savings from plea bargains.

On the side of the defendant, the ability to bargain brings with it benefits, as well. Pleading out, particularly before indictment in front of a Grand Jury, allows a criminal to evade minimum sentencing guidelines (Rhodes, 1992). During the War on Drugs, minimum sentences for crimes have become a matter of course, and as Rhodes outlines in his report, “drug-law violations have the largest incidence of plea bargains that result in sentences outside the guidelines.” He reports that nearly a quarter of all guilty pleas affect the guideline sentencing. Bibas touches on this when he states that plea bargaining does ‘empower parties by promoting freedom of choice. (Bibas, 2003)’ The criminal, from being a pawn in a system that is steered by defense lawyers, prosecutors, and judges, is able to have a voice in what is to become of him. If he waited until the jury convicted him, and the judge handed down a sentence, he would be voiceless. By admitting his guilt, he is able to take some control back, and argue for a lesser sentence.

Bibas also includes nolo contendere and Alford pleas in the plea bargaining analysis. “Many guilty defendants are in denial and find it hard to admit their crimes to others or even to themselves. For them, Alford and nolo contendere pleas are easy ways to remain in denial and avoid the painful processes of confession or trial (Bibas, 2003). Plea bargains are usually carried out with the attorneys, informal and out of court (McConkie, 2015). These options can allow a defendant different ways to escape public scrutiny of their crimes. Privacy can be maintained, where a jury trial can allow them no shade from the light of the media turned on their past.

The Supreme Court has repeatedly upheld the practice of plea bargaining. “Most judges support the system of plea bargaining because it allows them to alleviate the need to schedule and hold a trial on what are typically already overcrowded dockets. Prosecutors desire both the reduced caseload and assurance of a conviction from plea bargaining. Plea negotiations also allow prosecutors to strengthen their cases against codefendants by offering certain defendants a plea arrangement in exchange for testimony against one or more codefendants. This practice assures prosecutors at least one conviction while also enhancing the chances of a subsequent conviction. Defendants are allowed to avoid a more serious charge or sentence and, if represented by private counsel, avoid the cost of a trial. So, on balance, the practice of plea bargaining is generally believed to be superior to trials due to reduced costs, improvements in the speed and efficiency of case processing, and increases in the certainty of convictions (Thaxton, 2013).”

If we return to our imaginary case for a moment, after the child and her parents give the prosecutor the go-ahead to seek a plea bargain, which permission he sought in a token to the victim, the prosecutor can approach the defense lawyer with the balance of a threat on one hand – the confessions made can and will be held against the defendant – and a promise on the other. Plead out, and avoid the worst possible sentences. Also, your name will not be dragged through the mud again, harming not only your reputation, but your family as well. If the defendant takes that offer, then the young victim is spared an ordeal in the trial, the defendant escapes the worst consequences, and the justice system is spared some of the costs, and can assuredly say that justice was done, even if it was not through traditional means.




Bibas, S. (2003). Harmonizing Substantive Criminal Law Values and Criminal Procedure: The case of Alford and Nolo Contendere Pleas. Cornell Law Review, 67.

Bureau of Justice Statistics. (2004, May 2). BJS. Retrieved from

Cohen, M. A. (1988). Study of the Cost of Crime to Victims. Law & Society Review, 537-556.

McConkie, D. S. (2015). Judges as Framers of Plea Bargaining. Stanford Law & Policy Review, 61-115.

Rhodes, W. (1992). Sentence Disparity, Use of Incarceration, and Plea Bargaining: The Post-Guideline View from the Commission. Federal Sentencing Reporter, 153-155.

Thaxton, S. (2013). Leveraging Death. The Journal of Criminal Law & Criminology, 475-552.