Criminal defendants charged with felonies could completely overcome the court system if they coordinated their efforts. “If even half of the 90% of the defendants who now plead guilty should request trial, the judicial system would break down from overload,” said B.J. George Jr. Although society would certainly respond to a substantially overburdened court system by allotting more resources to it, such a response would likely be slow. Proponents of plea bargaining argue that it allows the accused to have a greater degree of autonomy over the results of their cases.
Unlike a system without plea bargaining, in which a defendant either pleads guilty without meeting with the prosecutor or pleads innocent and then goes through the trial process, plea bargaining allows the defendant the intermediate option of pleading guilty to avoid a harsh penalty. This argument sees plea bargaining as an extra check in the criminal justice system to ensure that the autonomy and liberty of the accused are respected by the state. Plea bargaining also protects innocent defendants from the possibility of harsh sanctions. Unfortunately, innocent defendants who realize that the case against them is too overwhelming to gain leniency from the judge or to win acquittal from a jury may view plea bargaining as an attractive alternative to trial. Without plea bargaining, many of these innocent defendants would be found guilty and sentenced.
Of course, plea bargaining does not violate one’s right to trial, as defendants always have the option to plead not guilty and be tried by a jury. Proponents of plea bargaining point out that prosecutors do not force anyone to plea bargain. Although plea bargaining is not perfect, the pressures placed on the court system make it the best way to promote justice. Critics of the practice tend to focus only on the relatively insignificant number of cases where plea bargaining results in injustice. When evaluating the effectiveness of plea bargaining in promoting justice, it is important to focus equally on its strengths.
In most cases, plea bargaining is a fair and efficient way to deal with cases. Most guilty defendants will be convicted with or without plea bargaining, and most innocent defendants will be acquitted. Therefore, plea bargaining is usually an acceptable and more efficient alternative to trial. One important positive effect that plea bargaining has on the criminal justice system is that it preserves the seriousness of the innocent plea. With plea bargaining, innocent pleas are few and far between, making the judge and attorneys more attentive during trials.
Without plea bargaining, guilty defendants have less of an incentive to plead guilty and more of an incentive to go to trial. With more trials to attend to, and with most defendants being ultimately found guilty, the cases of the few innocent defendants who need trials the most might not receive the proper amount of attention from judges or attorneys. The efficiency excuse can only be used by the most overburdened courts. Prosecutors working in rural areas with relatively low caseloads use plea bargaining just as prosecutors who work in major cities.
Additionally, plea bargaining was used decades ago when courts, in general, were not as overburdened as they are today. These observations, according to opponents of plea bargaining, suggest that necessity is not the only explanation for the widespread use of the practice. An alternative explanation not cited by plea bargaining proponents is that the practice lifts burdens not only from the courts but also from the shoulders of the judges and attorneys who work within them. Attorneys and judges realize that trials require significantly more personal effort and time than plea bargaining. When the court has heard all of the cases on the docket, the judge and public attorneys are free to spend their time outside of the courtroom. Thus, the incentives for public attorneys and judges to use plea bargaining are often personal.
In light of this observation, the often cited efficiency excuse does not seem valid. As one scholar wisely observed, “Regardless of the caseload, there will always be too many cases for many of the participants in the system, since most of them have a strong interest in being somewhere other than court.” Plea bargaining presents a substantial threat to the liberties of the accused, especially those who are innocent. Prosecutors bargain with the harshest sentence that they think the defendant will accept in exchange for a guilty plea. Indeed, because judges tend to sentence convicted defendants who plead innocent with much harsher penalties than defendants who plead guilty, defendants who are clearly guilty would probably be better off pleading guilty even without a plea bargain.
On the other hand, a prosecutor will offer more substantial concessions to innocent defendants who would have relatively high chances of acquittal if their cases were to go to trial. Thus, plea bargaining allows the prosecutor to ensure that innocent defendants will be just as likely as guilty defendants to plead guilty to some charge. Plea bargaining violates many basic principles upon which our criminal justice system rests. One of these principles is that it is better to let ten guilty persons go free than it is to convict one innocent person. Plea bargaining attempts to ensure that everyone is convicted, albeit with a lighter sentence than if he or she had been found guilty in trial.
For the innocent, conviction is clearly an injustice, but the injustice of convicting the criminal through plea bargaining is often overlooked. By ensuring that criminals receive lighter sanctions, plea bargaining represents an injustice to society. If the criminal justice system is viewed as a system with the end of protecting citizens, plea bargaining and its leniency toward guilty defendants threatens to undermine the system by depriving it of the ability to deter crime and reform the offenders. While the doctrine of letting ten innocent defendants go free is not written in the Constitution, the doctrine that no person “shall be compelled in any criminal case to be a witness against himself” is. This Fifth Amendment right is violated by plea bargaining, in which the guilty plea, in light of the possibility of more lenient sanctions, is compelling. If one incriminates oneself by pleading guilty, the plea bargain violates the Fifth Amendment.
Unfortunately, the Supreme Court made an exception for plea bargaining in North Carolina v. Alford, in which it held that Alford, who would have pleaded innocent to murder had it not been for plea bargaining, was bound to his plea bargain. Alford’s testimony reveals that he was indeed compelled to plead guilty, thus incriminating himself: “I pleaded guilty on second-degree murder because they said there is too much evidence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life, and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.” Finally, plea bargaining violates the principle that guilt or innocence should only be determined by those deemed fit to do so. In our society, only judges and fairly selected juries enjoy that status.
Plea bargaining takes already difficult decisions out of the hands of qualified and socially sanctioned individuals and places them in the hands of attorneys, who are then subjected to “serious financial and other temptations to disregard their clients’ interests,” said A. W. Alschuler. Moreover, by making attorneys view themselves as “judges and administrators rather than as advocates,” plea bargaining transforms real judges into ineffective figureheads who cannot fulfill the role expected of them by those who appointed them.
