Plea Bargains and Criminal Legislation (A Race to the Top or the Bottom?)

One of the defining characteristics of the American criminal justice system is plea-bargaining.

A plea bargain is an agreement between an official prosecuting attorney (acting on behalf of the government) and a criminal defendant (often with the assistance on his attorney). The defendant is formally charged with a criminal offense. Rather than pleading not guilty and demanding a trial, the defendant may agree to plea guilty in exchange for prosecution’s recommendation that a particular penalty be imposed. This agreed-upon penalty will invariably be less than the legal maximum. In the alternative, the prosecutor may agree to dismiss a serious charge if the defendant agrees to plead guilty to a lesser charge. These agreements, however, have no affect unless the judge approves them.

For example, a defendant is arrested and indicted for burglary. The maximum penalty is 20 years imprisonment. The prosecutor agrees to recommend a penalty of two years incarceration in exchange for the defendant’s guilty plea.

In the federal court system, 95 percent of formal criminal charges are disposed of by guilty pleas (rather than trials). The vast majority of the guilty pleas stem from plea bargains. Similar proportions exist in most state court systems.

The plea bargain is a necessary expedient in the American criminal justice system. In America’s antecedent, eighteenth century England, criminal trials were rapid (almost summary) proceedings: they routinely took less than an hour. Two centuries of procedural evolution have made jury trials ponderous affairs. Utilizing the nation’s current court facilities and staffs, it is inconceivable that every formal charge be tried, much less with a jury. Thus, the procedural expedient of plea-bargaining is a necessity for both the courts and the prosecution. It is also a benefit for the defendant: she can exchange the unpredictability of a trial for the relative certainty of a mutually acceptable deal.

There are, however, unintended consequences. Arguable, the most dangerous is the perception that everyone who is changed is, in fact, guilty and that police and prosecuting attorneys always prevail. The high incidence of convictions stemming from guilty pleas can create the belief that fighting the government in court is a forlorn proposition. While this is not true, the general shortage of trials reduces opportunities for the courts to check overreach by both law enforcement and prosecuting attorneys.

Another adverse result of plea-bargaining is its perverse affects on criminal legislation. When a legislative body prescribes the penalty for a crime, it should consider a number of factors, including proportionality and the need to deter offenses as well as to incapacitate and rehabilitate offenders.

With the rise plea-bargaining, a new temptation was created: legislators can strengthen the prosecution’s negotiating position by raising the maximum penalties for criminal offenses. (This is particularly attractive to legislators bent on validating their law and order credentials.) A defendant is simply more likely to agree to three years in prison if the maximum sentence for the crime charged is 20 years rather than five. Plea-bargaining encourages legislators to increase penalties.

Georgia’s criminal laws provide examples of this phenomenon. Under the state’s first penal code (enacted in 1811), the maximum penalty for rape was 16 years imprisonment. Today, rape can be punished by life imprisonment. The 1811 penal code established a penalty of no more than 12 years imprisonment for burglary. It carries a potential sentence of up to 25 years incarceration under current law.

If there is an overreliance of plea-bargaining, the appropriate remedy remains an open question. Under the present circumstances, simply prohibiting the practice is unreasonable. The realities of the criminal justice system necessitate plea-bargaining.

As late as the end of the nineteenth century, it was possible for an individual who abjured violence and theft to ordinarily avoid criminal prosecution. The twentieth century brought legal developments increasing the number of criminals. These included the prohibition of alcohol, the restriction of drugs, and the regulation of motor vehicles. A person could, as a result, be hailed into court despite the fact that he was neither violent nor a thief.

The need for plea-bargaining could be decreased by reducing the volume of prosecutions. Diminishing the number of criminal offenses could in turn, reduce the volume of prosecutions.

Some acts and omissions simply must remain on the books as crimes. Those offenses that involve neither moral turpitude nor great danger to the public should, however, be designated as petty offenses. (A petty offense is a violation punishable by confinement for six months or less.) There is no right to a slow and costly jury trial in petty offense prosecutions. When the government’s resources are not threatened by the potential for a jury trial and the defendant is not threatened by a long period of confinement, both parties will be less likely to enter into a plea bargain.

References:

1811 Ga. Laws page 26, §§ 57, 58, 60 (burglary and rape).

Official Code of Ga. Ann. §§ 16-6-1, 16-7-1 (2014) (burglary and rape).

Baldwin v. New York, 399 U.S. 66 (1970) (explaining the petty offense exception to the right to a jury trial).

Bureau of Justice Assistance, U.S. Dept. of Justice, Plea and Charge Bargain: Research Summary 1 (2011), available at https://www.bja.gov/Publications/ PleaBargainingResearchSummary.pdf (indicating that 95 percent of criminal cases were disposed of by guilty pleas in 2003).

John H. Langbein, The Origins of Adversary Criminal Trial 16-17 (2003) (describing the speed of eighteenth century English criminal jury trials).