Plea Bargaining: Part III

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

Part I

Part II

The darker side of the justice system in the United States is that the halls of justice are filled with an unending stream of defendants. Some are new to the system, frightened, and sensitive to the possibilities of imprisonment and punishment. Others are hardened, having spent their lives pushing the boundaries of the law, and stepping over casually. The men and women who staff the court system are overwhelmed by the tide of offenders, and the sad reality is that some will fall through the cracks, into bad sentences, through production-line plea bargains tailored to reduce workloads rather than protect rights and ease charges in allowing defendants to take responsibility for their actions.

Statistically, defendants are older, overall, and have more convictions on their record, than was the case in past decades (Reaves, 2013). While crime rates are falling, the persons committing the crimes are now much more likely to be intimately familiar with the criminal justice system, and how to work that system to their advantage. Well over a third of defendants have ten or more criminal arrests on their record at the time of arrest in 2009, a percentage that had doubled in the decade preceding it, and of those arrests, 36% had led to felony convictions (Reaves, 2013). Recidivism is a huge factor, and the plea bargains may have a hand in allowing it. Of the convictions in Reaves’ study, nearly all of them were the result of a guilty plea, and those pleas were largely the result of plea bargaining. While the system may have saved itself a lot of time and money – the same study shows that the time elapsing between arrest and sentencing is an average of 111 days – the defendants may be knuckling under to get it over with, having spent a third of a year under the shadow of a trial  (Reaves, 2013).

The trial with its lengthy, expensive and highly formal proceedings, that in the end comes down to the secret and highly unpredictable decision of a jury of his peers. That is the stick that prosecutors brandish at defendants, before extending the alluring carrot of a known charge that is not, they insist, the worst that could happen (Bibas, 2004). This shadow of a trial is, in an ideal system, the protective umbrella that keeps plea bargaining fair. In theory, the establishment of sentencing guidelines in many jurisdictions should make the plea bargain process even more predictable. Since 95% (in the year 2000) are disposed by plea bargaining, relying on this is almost taken for granted in the justice system. Bibas argues that in reality, plea bargains are not based on deterrence, punishment, or retribution. Instead, they are skewed by psychological and practical considerations, and have become based on finances, sex, education, intelligence, and confidence. Innocent, or impaired defendants are at the mercy of lawyers who may be undertrained, or self-serving (Bibas, 2004).

There is a significant lack of oversight and regulation surrounding plea bargaining. Prosecutors more often than not do not record nor report the factors they use in setting up a plea bargain. This leads to a lack of clarity in how things like previous arrest records, convictions, and demographic factors affect offenders who are being convinced to plead guilty. Legally, as per US v Drain, a “substantial history of arrests, especially if they are similar to the offense of conviction, can be a reliable indicator of a pattern of criminality, suggesting a recidivism risk. (Lawson, 2016)” However, the scope of case law is ambiguous, with US v Guajardo-Martinez stating that “a sentencing court may not rely on the prior arrest record itself in deciding on a sentence. (Lawson, 2016)” It should not escape our notice, however, that this constraint does not apply to what prosecutors may weigh in the privacy of their office as they bargain with an offender who may have a lengthy arrest record.

In an impassioned argument against the system, Nathaniel Pallone states that a plea-bargain led directly to the brutal death of a young girl, and in the emotional backlash following the tragedy, the establishment of the sex offender legislation as we know it (Pallone, 2003). He points out that the plea-bargain struck was unwise, reducing a sentence to a third of the recommended length. This was compounded when the plead sentence time was served and the recommendations of the staff, the parole board, and others were ignored as they warned against returning this offender to society. The scope of his essay is beyond this paper, but suffice it to say that he firmly believes that the sex offender legislation adopted as a result of this plea-bargain, release, and ensuing death, is mistaken and unfounded, leading to greater injustice than a single incarceration would have been (Pallone, 2003).

The complex motivations behind the acceptance of a plea bargain, or the fight to take their case to trial, are many. However, one factor relates to the impulsiveness of the offenders, which is what led to the tragic murder referenced in the previous point. The same lack of self-control leads to the defendant discounting the ‘cost’ of prison when weighing whether to accept a plea bargain. The prospect of a shorter sentence seems more endurable to them than the prospect of a hostile jury (Bibas, 2004). The defendant’s ability to assess the risk ahead of him is dependent on his education, intelligence, and confidence, meaning that vulnerable populations of young people, the mentally ill, or the homeless are unable to argue for their best interests (Lawson, 2016).

Plea bargaining may also be detrimental to the prosecutors who arrange the guilty pleas and in doing so, lessen their own workload. While they are not obligated to spend their time in preparing for and arguing a trial, it “does not serve the goals of retribution, deterrence, incapacitation, and rehabilitation,” that are to be the foundational principals of the American criminal justice system. In the model of the courts that envisions a conveyor belt full of offenders being stamped guilty or not guilty by rote in an overly-full system, plea bargaining is akin to a ‘proceed directly to jail’ card (George B. Palermo, 1998).  Plea bargaining, it is argued, places legislative power in the hands of prosecutors who are then faced with conflicting decisions that potentially lead them to usurp the power of a separate branch of the government, without the training or the authority to make decisions at that level (George B. Palermo, 1998).

Justice Rehnquist said of this: “the process of plea bargaining is not one with any student of the subject regards as an ornament to our system of justice. (George B. Palermo, 1998)” Whether plea bargaining is a force for good, or evil, it seems clear that with only 5% of cases proceeding to trial in the criminal justice system, it is here to stay. The setting in which the bargaining takes place is an uneven floor, with the prosecutor taking the upper hand and exerting considerable coercive pressure on the defendant who is seeking to avoid the risk of a lengthy term of imprisonment. The power of a prosecutor can, as in any other arena, be abused. Prosecutors are only human, and subject to the same failures, assumptions, and lack of information as any other person responsible for the lives of others (George B. Palermo, 1998). Negotiations that are undertaken in bad faith can lead to the conviction of the innocent, the release of the dark-souled who ought to have been retained for further punishment, or the abuse of power that allows a petty tyrant his revenges for slights real and imagined.




Bibas, S. (2004). Plea Bargaining outside the Shadow of Trial. Harvard Law Review, 2463-2471.

George B. Palermo, M. A. (1998). Plea Bargaining: Injustice for All? International Journal of Offender Therapy and Comparative Criminology, 111-123.

Lawson, B. K. (2016). How Bad Arrests Lead to Bad Prosecution: Exploring the Imact of Prior Arrests on Plea Bargaining. Cardozo Law Review, 974-996.

Pallone, N. (2003). Without Plea-Bargaining, Megan Kanka Would be Alive Today. Criminology and Public Policy, 83-97.

Reaves, B. J. (2013). Felony Defendants in Large Urban Counties. Bureau Of Justice Statistics, 1-40.