The American Bar Association (ABA) released a report last August on plea bargaining in the United States and recommending a path forward for reform. The report introduces “14 Principles” that criminal justice stakeholders are encouraged to embrace. The report makes several recommendations for how to improve plea bargaining practices. I encourage those interested to read the report. The National District Attorneys Association offers a thoughtful critique of the ABA’s report. I write here as a working prosecutor to add some context and perspective to real-world plea bargaining.
While it is true that American courts have felt uneasy about the use of plea bargains over the course of our legal history, their use is sanctioned by the judiciary primarily because the criminal justice system would grind to a halt if they were declared unconstitutional or outlawed by statute, rule, or policy. The United States in the 18th and 19th centuries was truly a land without law, so to speak, with few criminal statutes and lax enforcement. Today, there are thousands of state and federal criminal statutes. Couple that with hundreds of relatively well-funded law enforcement agencies and related criminal justice administrative capability — and you’ve got yourself a TON of prosecution across this country.
Plea bargains are necessary because it is literally impossible to try every case or secure finality to criminal cases without inducing defendants to accept plea offers absent some kind of benefit in sentencing or charging. Moreover, we are a much bigger country today, 330 million strong, growing every day, with more reported crime than in earlier times. The answer isn’t doing away with plea bargains or diminishing their value, but rather allocating more resources to the criminal justice system, particularly prosecutor’s offices and judgeships. More prosecutors and judges means more time to try cases. Are plea bargain detractors willing to make the necessary adjustments to local, state, and federal budgets to “safeguard” Americans’ constitutional right to trial by jury?
The biggest concern, addressed in whole or in part, in four of the ABA’s “14 Principles” is this notion of a “trial penalty” or “coercive tactics.” The argument goes like this:
- The prosecutor offers a particular sentence if the defendant pleads guilty to a specific charge.
- If the defendant chooses not to plead guilty and instead exercises his constitutional right to a jury trial, then he is “penalized” and is sentenced more harshly if he is found guilty by a jury.
To be clear, prosecutors don’t offer “trial penalties.” They offer defendants reduced sentences and/or charges in exchange for guilty pleas. When prosecutors offer reduced sentences, they are lower than what judges typically impose upon conviction by a jury for that particular charge, under a specific set of facts. Let us remember — it is judges, not prosecutors, who sentence defendants. No judge is required to accept a negotiated sentence, nor impose a sentence higher than a prosecutor’s offer, unless mandated by statute, such as a mandatory minimum. Plea bargains are about incentives. Otherwise, why would any defendant take a plea offer? Defendants take plea offers because they benefit from them.
In short, prosecutors offer defendants the opportunity to plead guilty to reduced charges for a sentence that is less harsh than what they should receive, absent a plea offer. Such is a substantial benefit to criminal defendants. In fact, criminal defense attorneys want prosecutors to make plea offers because of the sizable benefit their clients could receive. Lest we forget, prosecutors are not required to make plea offers. They could just as well force every defendant to plead guilty without an offer (exposing him to the entire sentencing range for a particular crime) or take a risk at trial (where outcomes are always uncertain — and if the defendant loses, is similarly exposed to the entire sentencing range).
Importantly, any perceived “trial penalty” is often, in fact, not a penalty at all, but rather the commensurate punishment after having been found guilty by a jury of your peers of a specific criminal offense under a particular set of facts and circumstances. Plea bargaining is, in effect, discounted justice — a benefit to the criminal defendant.
Oftentimes, prosecutors will use whatever leverage they have at their disposal. That includes the death penalty, life imprisonment, mandatory minimums, threat of prosecution for greater offenses, and threat of prosecuting others close to the defendant. A prosecutor’s lawful use of leverage is appropriate. There is nothing unethical, illegal, or immoral about inducing a defendant into pleading guilty to a crime for which there is probable cause, which the prosecutor believes he is guilty of committing, and which the prosecutor believes is triable. A so-called “threat” to seek a lawful sentence or indict for a proper charge is no threat at all. It is the pursuit of justice. It is baseline justice. Plea bargaining, in this sense, is the only true injustice — as the criminal defendant gets away with more — for less.
Finally, I will address concerns over alleged racial bias in plea bargains. If there is any disparate impact in plea bargains, I don’t know if it is due to racial bias, or is caused by other proper considerations such as criminal history, the facts of the case, the nature of the crime, or other factors. However, if racial bias does exist, it does not bear on the propriety of plea bargaining. It does not diminish the value it brings to the criminal justice system, or the benefit it invariably brings to criminal defendants.
I am a criminal prosecutor and resolve the vast majority of my cases via plea bargains, as a matter of course. They are a necessary part of the criminal justice system as it exists today. Plea bargains benefit criminal defendants who often walk away with lesser charges and reduced punishment. Victims walk away with discounted justice. That’s the reality.
John Q. Prosecutor