By: Travis Henderson
Plea bargaining lies ingrained in the American justice system. Yet, even with plea bargaining’s long history and pervasive use, it is continually criticized. Questions of whether plea bargaining should be banned or limited are ever-present. This post will illuminate some of the supports for and criticisms of plea bargaining, bringing recognition to an imperfect system with hopes to foster thought on how to do better.
Supporters of plea bargaining point to a variety of benefits. A plea bargain allows for the individualization of each case, recognizing that not every crime under the same name is equal in light of the facts. Furthermore, our justice system is a limited resource and is subject to efficiency concerns like everything else. Plea bargaining allows for the quick resolution of cases, which eases court congestion and reduces costs associated with lengthy trials. Finally, trials can be difficult for everyone, especially the victims who may have to face the individual who hurt them. Plea bargaining can benefit victims by not requiring them to testify and not subjecting them to the difficulties and stresses of a trial.
Conversely, opposition to plea bargaining illuminates’ areas of concern. First, psychological pressures may push an innocent person to accept a plea deal in fear of facing much harsher punishment if convicted at trial. Prosecutors may even keep information from the defendant that otherwise would cause them to reject the plea offer. This concealment creates a dangerous dynamic where innocent individuals accept plea deals without all the information to avoid risking worse alternatives at trial. Second, the power dynamic is almost exclusively in favor of the prosecution. There is very little give and take in the plea bargaining process, unlike in many other contract negotiations. Prosecutors have an overwhelming advantage and can bring enormous pressure to encourage a defendant to accept a plea deal. Third, plea bargaining is outside the purview of the public. The concealment of plea bargaining allows prosecutors to cover police mistakes and shield the State from negative public perceptions, which ordinarily hold the State accountable. There is also criticism that plea bargaining enables the defendant to escape full accountability and that victims do not receive the justice they deserve. This view is rooted in the belief that when society decides a punishment for a crime, it is inequitable for all the parties involved by offering less. As a result, the public is less safe, the victim receives less justice, and the defendant does not get his “just desserts.” Lastly, plea bargaining has a discriminatory impact in “the game” of negotiation. Money and resources available to the defendant heavily influence plea bargaining. Individuals who can hire private defense attorneys can afford to drag out cases to get a better plea. If they decide to go to trial, they have more resources, such as hiring an expert witness or private investigator to strengthen their defense. These resources affect how generous a prosecutor might be with their initial plea offer, giving an unfair advantage to those who can afford it.
Ultimately our system isn’t perfect, but that doesn’t mean we can’t do better. Plea bargaining is a necessary part of how our justice system operates, and without a large-scale reformation, it is unlikely to disappear anytime soon. However, the real crux of the concern lies in how courts have shifted the power dynamic even further. The Supreme Court took a step forward for defendants when they addressed plea bargaining in Brady. The court imbued a voluntariness standard into plea deals, stating a plea of guilty must be “entered by one fully aware of the direct consequences….” However, the Bordenkircher court shifted the power dynamic back drastically, holding, “[a] plea may [be] induced by promises of a recommendation of a lenient sentence or a reduction of charges….While confronting a defendant with the risk of more severe punishment clearly may have a discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices is an inevitable and permissible attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” In other words, prosecutors may charge the most severe offenses at the beginning with promises of leniency or charge lesser offenses with the threat the defendant may face harsher charges later. This dynamic presents the ugly side of plea bargaining.
As a society, we encourage our prosecutors to use threats and promises to get defendants to waive their constitutional rights and plead guilty without proof of “beyond a reasonable doubt.” In the business world, we tolerate these tactics, but should we expect them from the government officials upholding our justice system? Ultimately, plea bargaining is likely to stay and has various pros and cons, as indicated above. However, the critical question is can we do better? And if so, how?
 Erwin Chermerinsky & Laurie L. Levenson, Criminal Procedure 899 (Rachel E. Barkow et al. eds., 4th ed. 2022).
 Fred C. Zacharias, Justice in Plea Bargaining, 39 Wm. & Mary L. Rev. 1122, 1149 (1998).
 Id. at 1134.
 Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 Univ. Ill. L. Rev. 37, 71.
 Chermerinsky, Supra note 1, at 900.
 Gifford, Supra note 8, at 73.
 Brady v. United States, 397 U.S. 742, 755 (1970).
 Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).
 Chermerinsky, Supra note 1, at 907.
Travis graduated from Utah Valley University with a B.S. in Business Management and a minor in Finance after serving six years in the United States Air Force. He is currently a 2L and plans to work in the field of criminal justice as either a public defender or prosecutor. His personal interests include working out, going on motorcycle rides with his wife, and taking his dogs Tonka (Mix) and Tony (Pit Bull) to the dog park.