Plea Bargaining


In a prior chapter, we saw a case about the obligation of a defense attorney to inform the client about plea bargaining offers made by the prosecution (Missouri v. Frye, 2012).  It is well recognized that the vast majority of criminal convictions are obtained through plea bargaining and relatively few criminal cases actually go through a criminal trial.  Depending on the jurisdiction, it is very typical to see fewer than 10 percent of cases go to trial.  Thus, plea bargaining is an especially important component of the process that determines people’s fates in the criminal justice system.

When a plea bargain concludes a criminal case, it typically means that the defendant agree to enter a guilty plea in exchange for having certain charges dropped or having a sentence that is less severe than the maximum possible sentence or having the prosecutor make a recommendation for a lesser sentence.

In Santobellow v. New York (1971), Chief Justice Warren Burger clearly pronounced the Supreme Court’s approval of plea bargaining as a desirable part of the criminal justice process:

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

Disposition of charges after plea discussions is not only an essential part of the process, but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v. United States, 397 U. S. 742, 397 U. S. 751-752 (1970).

There are, however, many criticisms of plea bargaining and questions about the ways that the process can create unfair treatment and unjust results.  As described by a 2020 report by the Vera Institute of Justice, there are a variety of concerns and problems that can arise in concluding cases through the use of negotiated guilty pleas:


  • Coercive factors:  Defendants, including innocent defendants, may feel pressured to enter guilty pleas in order to avoid severe sentence or due to pressures from their defense attorneys who may desire to reach a quick conclusion to the case.
  • Systemic inequities:  Conscious and unconscious bias may affect the nature of plea agreements offered to and sentences received by defendants, depending on their age, race, social status, and other factors.
  • Trial penalty:  Because defendants who turn down plea agreement offers and are subsequently convicted after trial typically receive more severe sentences, there are concerns that the plea bargaining process unduly pressures defendants to surrender their constitutional rights, such as the right to trial by jury.  Critics argue that defendants should not be penalized for using their constitutional rights.
  • Innocence:  Cases have emerged in which innocent people felt pressured to plead guilty.  Their fear of potentially severe sentences and their lack of confidence in the ability of the justice system to produce accurate results through the trial process can lead them to plead guilty despite their innocence.

One of the key issues in plea bargaining is the extent to which prosecutors can pressure defendants to plead guilty by threatening to pursue additional charges if the defendant insists on going to trial. 


Icon for the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

Criminal Procedure: Undergraduate Edition Copyright © 2022 by Christopher E. Smith is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

Share This Book