Introduction

A plea bargain is an agreement between a criminal defendant and prosecutors in which the defendant agrees to plead guilty to some or all of the charges against them in exchange for concessions from a prosecutor. Those concessions typically come in the form of a reduced sentence, a change in the charge, or both._[1]

Plea bargaining is an often-used tool within the United States’ criminal court system. When viewed in the light most favorable to its proponents, makes punishment cheap, simple, and predictable._[2] Plea bargaining a source of efficient case disposition,_[3] and bestows a criminal defendant with the benefit of a reduction in criminal liability or jail time._[4]

Given such benefits, when analyzed at a superficial level, it is not difficult to understand why the practice of plea bargaining is so common. In fact, plea bargaining is not just common, it is exceptionally routine. This method of assembly line justice has fed our criminal law system’s desire for expedient case disposition so well that, according to a 2023 ABA Plea Bargain Task Force Report, “some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions” (emphasis added). However, when analyzing plea bargaining’s role and effects within our criminal justice system, the benefits that drive the frequent use of this prosecutorial machine begin to lose their luster.

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Digging Deeper into Plea Bargaining’s Role and Effects

Within the federal courts, ninety-eight percent of criminal cases are resolved by plea bargain. The state level does not fare much better. A 2011 Bureau of Justice Assistance report noted, “scholars estimate that about ninety to ninety-five percent of. . . state court cases are resolved through [plea bargaining].” In California alone, approximately ninety-seven percent of convictions for felonies and ninety-eight percent of convictions for misdemeanors are the result of guilty pleas negotiated through plea bargaining. Based on these findings, plea bargaining is the primary means by which individuals are convicted.

This alone may be cause for alarm given one of the hallmarks of our criminal justice system is the constitutional right to a jury trial._[5] As noted in the Supreme Court case Duncan v. Louisiana, this constitutional mandate is “fundamental to the American scheme of justice.”_[6] As author John W. Keker describes in The Advent of the “Vanishing Trial”: Why Trials Matter, without trials law will not develop, the jury system will atrophy, much of the criminal process will fall into secrecy, and the skills of trial attorneys will significantly fade._[7] However, as alarming as the potential erosion of our criminal trial system may be, more troubling still is the negative effects plea bargaining can have on  our peers.

Undeniably, plea bargaining is a highly effective tool in applying the “scarlet letter” that is the label “convicted criminal.” As Dan Canon states in his book Pleading Out. How Plea Bargaining Creates a Permanent Criminal Class, “America now finds itself with a massive and ever-growing number of people relegated to its criminal class, the lowest stratum of all.”_[8] And the effects of being a member of “the lowest stratum” are not insignificant. To each individual that enters the criminal class, a variety of collateral consequences can attach including “loss of civil rights, limits on personal freedom, dissemination of damaging information, and deprivation of opportunities and benefits.”

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Consequentialist and Retributive Justice Philosophies

This might sound acceptable when addressing crime from a consequentialist philosophy, where punishment is justified as a means to securing some valuable end, and a retributive justice philosophy, where those who commit wrongful acts deserve their punishment from a moral standpoint. After all, a basic internal human instinct often expects that criminal activity should be deterred and/or someone committing a wrong should be punished. And so, the logic goes, imprisonment and all the attached collateral consequences serves these purposes. However, gathered data does not appear to lend strong support to either of these theories.

Rachel Barkow, in her essay The Criminal Regulatory State, citing an analysis by Tomislav V. Kovandizic & Lynne M. Vieraitis on the growth of prison populations from the mid-1990s to the present day, found there exists “no statistically significant relationship between the growth of the prison population and the reduction in violent crime.”_[9] Citing an additional analysis by Raymond V. Liedka et al. indicating the existence of diminishing returns of deterrence as incarceration increases, Barkow posits our criminal regulatory system has reached the point where our levels of incarceration fail to serve as a reasonable means of deterrence._[10]

Of course,  the disheartening makeup of our criminal class must also be considered. In a 2021 Bureau of Justice Statistics report on U.S. jail and prison populations, “[a]mong racial and ethnic groups, black persons had the highest imprisonment rate in 2021 (1,186 per 100,000 adult black residents), followed by American Indian/ Alaska Natives (1,004 per 100,000), Hispanics (619 per 100,00[0]), whites (222 per 100,000) and Asians (90 per 100,000).” Given the disproportionate racial makeup of our incarceration system, any individual who whole-heartedly subscribes to a pure retributive justice philosophy must take a step back to assess whether our criminal justice system effectively holds accountable and punishes those who commit wrongs against society. If the possibility exists that our system is creating a criminal class and doling out punishment without regard to actual guilt, then a retributive justice philosophy loses its purpose and gives way to cruel and unusual punishment.

Given these troubling figures and analyses surrounding our criminal justice system, why then do we continue to utilize plea bargaining and what, if anything, can be done to address the practice’s harms?

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The Driving Force Behind Plea Bargaining

The routine use of plea bargaining is driven by its practicality. Plea bargaining has become increasingly prevalent in the past several decades as a method of case management, saving money, time, and promoting more certainty in outcomes. In 2022, California alone saw 57,000 felony convictions and under 100,000 misdemeanor convictions. Given the constraints imposed by limited personnel, budgets, and time it comes as no surprise that even the Supreme Court has noted that “[p]lea bargaining flows from ‘the mutuality of advantage’ to defendants and prosecutors, each with his own reason for wanting to avoid trial.”_[11] Given its practicality, would any county, state, or federal system be willing to adopt a policy of ending plea bargaining?

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Experimenting with an Incremental Phaseout of Plea Bargaining

In Pleading Out, Dan Canon writes, “it isn’t realistic to advocate a total ban on plea bargaining in the United States,” noting such bans have been attempted before in a “patchy and inconsistent” manner and lasted only as long as the person who imposed the ban managed to stay in office._[12]

It is unlikely any court system would be willing to fully abandon the process of plea bargaining. The California example demonstrates why abandonment is unrealistic. Using the California figures discussed above, such a drastic suspension of a highly used tool for case disposition could uproot around 55,000 felony convictions (approximately ninety-seven percent of the 57,000 felony convictions). That represents approximately 55,000 cases that would need to be disposed through some other manner such as through jury trial, dismissal, or by declining to file charges. Throw into the mix the large number of misdemeanor cases and it does not take much imagination to envision any court system grinding to a halt and a host of speedy trial nightmares to begin.

What if, instead, jurisdictions began a policy of phasing out plea bargaining for certain offenses like misdemeanors? According to Alexandra Natapoff’s essay, The Penal Pyramid, in the “universe of petty offenses, crowded dockets, and so-called ‘assembly line justice,’ trials are nearly extinct. . . and public defenders and prosecutors bargain wholesale over disposition of hundreds of cases, often in minutes._[13]”

Recall that plea bargaining is the primary means by which individuals are convicted. Considering the number of misdemeanor cases resolved by plea bargaining, Alexandra Natapoff’s assertion that petty offenses tend to run through this process in a matter of minutes, and the collateral consequences that attach upon conviction, it becomes clear that plea bargaining policy adjustments at the misdemeanor level could have significant impacts on the rate at which our nation’s criminal class grows.

Now, a phaseout of plea bargaining for all misdemeanors all at once need not happen. Rather, the community in each jurisdiction should be called upon to get involved, identifying those offenses which the community believes merit an alternative disposition other than plea bargaining. Effectively, this places the burden on the community to actively engage with the prosecutors in their jurisdiction to determine what criminal statutes should be prioritized. This approach is better designed to account for each community’s limited resources and gives the community a stake in how its prosecutors utilize prosecutorial discretion.

As a community evaluates the ebbs and flows of its local criminal justice system resulting from its choices, that community can make determinations about whether to continue implementing further phaseouts or make an about-face and return to the status quo. Importantly, in tracking the results, future studies may be able to determine a more tailored approach to creating not just an efficient criminal justice system, but one that is more just.

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A Brief Comment from the Author

This article provides a brief thought-experiment and a cursory overview on just one way policy adjustments on plea bargaining could lend itself to meaningful criminal reform. A more significant, in-depth discussion beyond the scope of this article is necessary to faithfully address a plea-bargaining adjustment approach to criminal reform. This author acknowledges that the U.S. criminal justice system is complex and cannot be overhauled by a simplified approach towards one aspect of that system. Rather, it is this author’s sincerest hope to leave you with an interest in diving deeper into the roles, effects, and possible changes to the plea-bargaining system.

If you would like to learn more, and perhaps challenge some of your own expectations of the plea-bargaining process, this author recommends you enjoy the following titles:

Pleading Out. How Plea Bargaining creates a Permanent Criminal Class by Dan Canon.

The New Criminal Justice Thinking edited by Sharon Dolovich and Alexandra Natapoff.

Punishment Without Trial: Why Plea Bargaining is a Bad Deal by Carissa Byrne Hessick.

Endnotes:

1 Dan Canon, Pleading Out. How Plea Bargaining Creates a Permanent Criminal Class 6 (Basic Books 2022)

2 Carissa Byrne Hessick, Punishment Without Trial. Why Plea Bargaining is a Bade Deal 33 (Abrams Press 2021)

3 Carissa Byrne Hessick, Punishment Without Trial. Why Plea Bargaining is a Bade Deal 33-34 (Abrams Press 2021)

4 Cynthia Lee & L. Song Richardson, Criminal Procedure: Adjudication 6 (West Academic Publishing, 3d ed., 2023)

5 U.S. Const. amend. VI

6 Duncan v. Louisiana, 391 U.S. 145 (1968)

7 John W. Keker, The Advent of the “Vanishing Trial”: Why Trials Matter, in Cynthia Lee & L. Song Richardson, Criminal Procedure: Adjudication 828-831 (West Academic Publishing, 3d ed., 2023)

8 Dan Canon, Pleading Out. How Plea Bargaining Creates a Permanent Criminal Class 9 (Basic Books 2022)

9 Rachel Barkow, The Criminal Regulatory State, in The New Criminal Justice Thinking 34 (Sharon Dolovich & Alexandra Natapoff eds., 2017)

10 Rachel Barkow, The Criminal Regulatory State, in The New Criminal Justice Thinking 34 (Sharon Dolovich & Alexandra Natapoff eds., 2017)

11 Bordenkircher v. Hayes, 434 U.S. 357 (1978)

12 Dan Canon, Pleading Out. How Plea Bargaining Creates a Permanent Criminal Class 260 (Basic Books 2022)

13 Alexandra Natapoff, The Penal Pyramid, in The New Criminal Justice Thinking 78 (Sharon Dolovich & Alexandra Natapoff eds., 2017)