Plea Bargaining

Types and Use in the United States

In the United States, under the Federal Rules of Criminal Procedure, rule 11 requires that the court ensure that the plea agreement is intelligent and voluntary and determine that there is a factual basis for the plea. Nevertheless, the judge must not participate in plea negotiations. There are different kinds of plea agreements, but the two main types are charge bargains—in which the prosecutor drops one or more charges or charges the defendant with a less serious offense in exchange for a guilty plea—and sentencing bargains—in which the prosecution agrees to, recommends, or does not oppose a certain sentence or the consideration of certain sentencing factors. Prosecutors use plea agreements not only to save human and material resources by obtaining convictions without trial, but also as investigative tools. As part of a plea agreement, the defendant may have to provide information and testify at trial for the prosecution against his former confederates.

There have been extensive criticisms against plea bargaining that come from different perspectives. From a crime-control perspective, critics argue that the practice leads prosecutors and judges to be soft on defendants, which undermines the deterrence effect of punishment. From a due-process perspective, critics argue that it generates perverse incentives for prosecutors to overcharge and ask for harsher sentences as a way to obtain an advantage in plea negotiations. It also offers defendants pleas that are more convenient when the evidence is weak. Finally, defense attorneys and public defenders encourage their clients to accept agreements so that they save time and reduce their caseload, while judges abdicate their adjudicative role in favor of prosecutors' decisions.

Some scholars consider plea bargaining to be in conflict with the federal constitutional rights to a trial by jury, confrontation, cross-examination, and proof beyond a reasonable doubt, among others, because it is prosecutors who, in fact, determine which defendants are convicted, and of which sentence, based on criteria not necessarily related to the merits of the case. Worse, those defendants who exercise these rights face potentially harsher punishments. This dilemma would be especially tough for innocent defendants who, in many cases, have to choose between a mild sentence offered by the prosecutor in plea negotiations and a much harsher sentence that could come after a conviction at trial. The same holds for defendants who are in pretrial detention and the courts would release if they accepted the plea agreement. Because plea bargaining generates these kinds of dilemmas, many consider it to be a coercive mechanism against defendants. In 1978, John Langbein even compared it to medieval torture.

...