Emotional Faces

Plea Bargaining: Part 1

This semester, I am writing a lengthy term paper with an assigned topic. Plea bargaining… sounds boring, right? Well, it turns out that perhaps more than 95% of criminal cases end in a guilty plea, with only a very small fraction of cases ever proceeding to trial. So whether it’s a good thing, or a bad thing, it’s obvious that plea bargaining is a huge part of the system and how it works in reality, not the theory of what would be ideal. The paper was assigned in sections, so I’ll be posting each section as it was written, with the references for that section. The final paper will be an amalgam of the sections, with a conclusion, and when the time comes I’ll post that alone. 

Plea Bargaining came about in an era when the courts of the United States were beginning to be overwhelmed with criminals who would have to stand in front of a jury of their peers. The concept that by offering a plea of a lesser charge, the trial by jury with all attendant costs in time and money could be avoided, was one that the overworked justice system embraced with fervor. However, as the passage of time would show, plea bargaining was a mixed blessing at best, and a serious injustice to those caught up in the workings, at worst. In the last century, plea bargaining has been a fact of life in the court system, but questions are increasingly being asked about its utility (Smith, 1987)

In Alaska, the concept of plea bargaining was outlawed in 1975. One of the arguments against it was that the younger generation of lawyers, all of whom came into practice after the rise of the plea bargain and the dwindling commonality of the trial, had no experience standing in front of a jury, and this poorly prepared them for the serious crimes and rare occasions when a plea bargain was not an option (Kruse, 1991).

In Ohio, a man accused of a crime and sentenced once under a plea bargain, was dismayed when it was argued that since he had not stood before a jury, his sentence could be arbitrarily changed near the end of the original agreement, and it would not entail double jeopardy since there had been no trial (Ohio, 2015). An entire generation of criminals knows that it is easier, and usually lighter in punitive consequences, to plead out than it is to insist on the fuss and bother of a trial (Smith, 1987). The men and women of the justice system are less concerned with justice, it sometimes seems, than in avoiding the time and money spent on empaneling a jury and following due process.

However, it can also be argued that plea bargaining is good for the defendants, inasmuch as they are better able to negotiate a punishment in keeping with their particular circumstances, rather than an arbitrary statutory sentence handed down without regard to the varied infractions that have been lumped up under that particular law (Smith, 1987). The very informality of the plea bargaining process that can be a downside comes into the favor of the defendant here, when a person accused of, say, trafficking in drugs can convince a prosecutor that they were in fact for his own personal use, and thereby he gains a much lighter sentence than he would in the impersonal environment of the courtroom.

Plea bargaining is regarded by many in the justice system to be a boon to that system, enabling them to evade the crushing pressure of the myriad of trials that would otherwise be their lot. Even in Alaska after the ban, under-the-table deals were still brokered, and arrangements such as ‘charge bargaining’ sprang up to replace the plea bargain (Kruse, 1991). Despite recent Supreme Court rulings on plea bargains, lawyers do not anticipate that much will change in the long-entrenched system in place (Alkon, 2012). Defense lawyers already do their best to make the bargaining fair, influenced by the fear of reprisal from their own system should they be tempted into wrongdoing. Perhaps it is better to keep the system above the table, in the light, rather than risk forcing it underground, where the shadows can hide far greater injustices.

On the other side of the courtroom from the defendant stands the victim, and a plea bargain may be a double-edged sword to them, as well. On one hand, the plea bargain may mean that a traumatized young person need not stand in the same courtroom as their attacker, relating painful details under extreme stress. On the other, a victim may never have the chance to stand proud and face down their fears as the person who harmed them is brought under the full press of justice. In this case, each person is unique, and a single solution cannot possibly serve all who seek that wrongs be made right.

It has been proposed that victims should have the right to express to the judge their feelings on the matter of a plea bargain in their case, but not to appeal that judge’s decision should they be unhappy with the outcome of the case (Welling, 1987). This level of involvement in the plea bargaining process may ameliorate somewhat the frustration over being in the dark as that process goes on, unlike the light of a trial with public attendance.

As with many tools, plea bargaining is, in the end, a force that must be wielded carefully. Without oversight and regulation, it could become a detriment, used to infringe on the rights of defendants, and as the Alaska Attorney General pointed out, with overuse it cripples the justice system personnel through atrophy. However, the use of plea bargaining does allow a smoother passage through the system for many, and victim participation ameliorates some of the issues with the lack of trial and confrontation of defendants with justice. It seems unlikely that after a century, plea bargaining will go away, so perhaps the best alternative is to use it to the best purposes within the law that are possible, given a full understanding of the potential drawbacks.



Works Cited

Alkon, C. (2012). Plea Bargaining, Just as it Ever Was? The Mayhew-Hite Report.


Ohio, C. o. (2015). Bay Village v. Barringer, 2015-Ohio-4079.

Smith, D. A. (1987). The Plea Bargain Controversy. Journal of Criminal Law and Criminology.

Welling, S. N. (1987). Victim Participation in Plea Bargains. Washington University Law Review.




5 responses to “Plea Bargaining: Part 1”

  1. Reality Observer Avatar
    Reality Observer

    Hmm. I see that you touched on prosecutor overloading – which is real, and that plea bargaining partially alleviates.

    However – are you also going to get into defender overloading? The prosecutor all too often will overcharge, with allegations that will get past the judge, but are unlikely to stand the light of a jury trial. The defense lawyer will often then support a plea bargain, because they know that while they can get their client off on the excess charges, it will consume many hours of time to do so.

    The Alaska “system” (apparently informal) of charge bargaining sounds more reasonable to me – charge what you are likely to prove, and only what you are likely to prove.

    1. Yes, I do get into the coercive aspect in the third part of the paper. One of the problems with plea bargaining is that so much of it happens in the shadows, with no oversight on what and who the prosecutors are ‘bargaining’ with.

  2. […] Part I can be found here. […]