Plea bargaining in the United States
Encyclopedia
Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain
rather than by a jury trial
. They have also been increasing in frequency - they rose from 84% of Federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory
has been used to analyze the plea bargaining decision.
The constitutionality of plea bargaining was established by Brady v. United States
in 1970. Santobello v. New York
established that when plea bargains are broken, remedies exist; and it has been argued that given the prevalence of plea agreements, the most important rights of the accused may be found in the law of contracts rather than the law of trial procedure.
Several features of the American justice system tend to promote plea bargaining. The adversarial nature of the system puts judges in a passive role, in which they have independent access to information with which to assess the strength of the case against the defendant. The parties thus can control the outcome of the case by exercising their rights or bargaining them away. The lack of compulsory prosecution
also gives prosecutors greater discretion. And the inability of crime victims to mount a private prosecution
and their limited ability to influence plea agreements also tends to encourage plea bargaining. Prosecutors have been described as monopsonists.
are followed in federal cases and have been created to ensure a standard of uniformity in all cases decided in the federal courts. A two- or three-level offense level reduction is usually available for those who accept responsibility by not holding the prosecution to the burden of proving its case.
The Federal Rules of Criminal Procedure
provide for two main types of plea agreements. An 11(c)(1)(B) agreement does not bind the court; the prosecutor's recommendation is merely advisory, and the defendant cannot withdraw his plea if the court decides to impose a sentence other than what was stipulated in the agreement. An 11(c)(1)(C) agreement does bind the court once the court accepts the agreement. When such an agreement is proposed, the court can reject it if it disagrees with the proposed sentence, in which case the defendant has an opportunity to withdraw his plea.
that the Judicial Council of California
has published an optional seven-page form (containing all mandatory advisements required by federal and state law) to help prosecutors and defense attorneys reduce such bargains into written plea agreements.
In California, plea bargaining is sometimes used in proceedings for involuntary commitment
for mental disorder. Some individuals alleged to be dangerous to self and/or dangerous to others bargain to be classified instead as merely "gravely disabled."
, or in any event to end up serving less time than they would serve waiting for trial. Outcomes in criminal cases are also made less predictable by the fact that, while a plaintiff in a civil case has a financial incentive to seek the largest judgment possible, a prosecutor does not necessarily have an incentive to pursue the most severe sentence possible.
The United States Supreme Court has recognized plea bargaining as both an essential and desirable part of the criminal justice system. The benefits of plea-bargaining are said to be obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value. However, in 1975 the Attorney-General of Alaska, Avrum Gross, ordered an end to all plea-bargaining; subsequent attorneys-general continued the practice. Similar consequences were observed in New Orleans, Ventura County, California
, and in Oakland County, Michigan
, where plea bargaining has been terminated. Bidinotto found:
Some legal scholars argue that plea bargaining is unconstitutional because it takes away a person's right to a trial by jury. In fact, Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.
Plea bargaining is also criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.
In the 1991 book Presumed Guilty: When Innocent People Are Wrongly Convicted, author Martin Yant discusses the use of coercion in plea bargaining.
The theoretical work based on the Prisoner's dilemma
is one reason why, in many countries, plea bargaining is forbidden. Often, precisely the Prisoner's dilemma scenario applies: it is in the interest of both suspects to confess and testify against the other suspect, irrespective of the innocence of the accused. Arguably, the worst case is when only one party is guilty—here, the innocent one is unlikely to confess, while the guilty one is likely to confess and testify against the innocent.
It has been argued that plea bargaining benefits society by ensuring that the guilty are not acquitted.
Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning his case and sending the defendant away to prison for 10 years, he may make a plea agreement for a 1-year sentence; but if plea bargaining is unavailable, he may drop the case completely.
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
rather than by a jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
. They have also been increasing in frequency - they rose from 84% of Federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory
Game theory
Game theory is a mathematical method for analyzing calculated circumstances, such as in games, where a person’s success is based upon the choices of others...
has been used to analyze the plea bargaining decision.
The constitutionality of plea bargaining was established by Brady v. United States
Brady v. United States
Brady v. United States, , was a case in which the United States Supreme Court refused to hold that enormous sentencing discounts and threats of the death penalty are sufficient evidence of coercion.-Trial:...
in 1970. Santobello v. New York
Santobello v. New York
Santobello v. New York, , was a case in which the U.S. Supreme Court ruled that the sentence of the defendant should be vacated because the plea agreement specified that the prosecutor would not recommend a sentence, but the prosecutor breached the agreement by recommending the maximum sentence....
established that when plea bargains are broken, remedies exist; and it has been argued that given the prevalence of plea agreements, the most important rights of the accused may be found in the law of contracts rather than the law of trial procedure.
Several features of the American justice system tend to promote plea bargaining. The adversarial nature of the system puts judges in a passive role, in which they have independent access to information with which to assess the strength of the case against the defendant. The parties thus can control the outcome of the case by exercising their rights or bargaining them away. The lack of compulsory prosecution
Compulsory prosecution
Compulsory prosecution is an aspect of certain justice systems in which the prosecutor is required to press charges when he has sufficient evidence to support a conviction. This system is used in Germany. It also has been required by the Constitution of Italy since 1948. The lack of such a...
also gives prosecutors greater discretion. And the inability of crime victims to mount a private prosecution
Private prosecution
A private prosecution is a criminal proceeding initiated by an individual or private organisation instead of by a public prosecutor who represents the state...
and their limited ability to influence plea agreements also tends to encourage plea bargaining. Prosecutors have been described as monopsonists.
Federal system
The Federal Sentencing GuidelinesFederal Sentencing Guidelines
The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system...
are followed in federal cases and have been created to ensure a standard of uniformity in all cases decided in the federal courts. A two- or three-level offense level reduction is usually available for those who accept responsibility by not holding the prosecution to the burden of proving its case.
The Federal Rules of Criminal Procedure
Federal Rules of Criminal Procedure
The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts, the general trial courts of the U.S. government. As such, they are the companion to the Federal Rules of Civil Procedure...
provide for two main types of plea agreements. An 11(c)(1)(B) agreement does not bind the court; the prosecutor's recommendation is merely advisory, and the defendant cannot withdraw his plea if the court decides to impose a sentence other than what was stipulated in the agreement. An 11(c)(1)(C) agreement does bind the court once the court accepts the agreement. When such an agreement is proposed, the court can reject it if it disagrees with the proposed sentence, in which case the defendant has an opportunity to withdraw his plea.
State systems
Plea bargains are so common in the Superior Courts of CaliforniaSuperior Courts of California
The Superior Courts of California are the superior courts in the U.S. state of California with general jurisdiction to hear and decide any civil or criminal action which is not specially designated to be heard in some other court or before a government agency...
that the Judicial Council of California
Judicial Council of California
The Judicial Council of California is the rule-making arm of the California court system. It was created by an amendment to article VI of the California Constitution in 1926...
has published an optional seven-page form (containing all mandatory advisements required by federal and state law) to help prosecutors and defense attorneys reduce such bargains into written plea agreements.
In California, plea bargaining is sometimes used in proceedings for involuntary commitment
Involuntary commitment
Involuntary commitment or civil commitment is a legal process through which an individual with symptoms of severe mental illness is court-ordered into treatment in a hospital or in the community ....
for mental disorder. Some individuals alleged to be dangerous to self and/or dangerous to others bargain to be classified instead as merely "gravely disabled."
Controversy
The shadow-of-trial argument states that plea agreements merely reflect the outcome that would have transpired had the case gone to trial. E.g., if the accused faces 10 years and has a 50% chance of losing in court, then an agreement will result in a 5 years sentence, less some amount deducted for saving the government the cost of trial. Theoretically, the shadow-of-trial should work even better in criminal cases than in civil cases, because civil judgments are discretionary, while criminal judgments are often regulated by mandatory minima and sentencing guidelines, making sentences more predictable. A counter-argument is that criminal sentencing laws are "lumpy," in that the sentencing ranges are not as precise as the dollars-and-cents calibration that can be achieved in civil case settlements. Further, because some defendants facing small amounts of prison time are jailed pending trial, they may find it in their interests to plead guilty so as to be sentenced to time servedTime served
In criminal law, "time served" describes a sentence where the defendant is credited immediately after the guilty verdict with the time spent in remand awaiting trial. The time is usually subtracted from the sentence, with only the balance being served after the verdict...
, or in any event to end up serving less time than they would serve waiting for trial. Outcomes in criminal cases are also made less predictable by the fact that, while a plaintiff in a civil case has a financial incentive to seek the largest judgment possible, a prosecutor does not necessarily have an incentive to pursue the most severe sentence possible.
The United States Supreme Court has recognized plea bargaining as both an essential and desirable part of the criminal justice system. The benefits of plea-bargaining are said to be obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value. However, in 1975 the Attorney-General of Alaska, Avrum Gross, ordered an end to all plea-bargaining; subsequent attorneys-general continued the practice. Similar consequences were observed in New Orleans, Ventura County, California
Ventura County, California
Ventura County is a county in the southern part of the U.S. state of California. It is located on California's Pacific coast. It is often referred to as the Gold Coast, and has a reputation of being one of the safest populated places and one of the most affluent places in the country...
, and in Oakland County, Michigan
Oakland County, Michigan
-Demographics:As of the 2010 Census, there were 1,202,362 people, 471,115 households, and 315,175 families residing in the county. The population density as of the 2000 census was 1,369 people per square mile . There were 492,006 housing units at an average density of 564 per square mile...
, where plea bargaining has been terminated. Bidinotto found:
…ending plea bargaining has put responsibility back into every level of our system: police did better investigating; prosecutors and lawyers began preparing their cases better; lazy judges were compelled to spend more time in court and control their calendars more efficiently. Most importantly, justice was served — and criminals began to realize that they could not continue their arrogant manipulation of a paper-tiger court system.
Some legal scholars argue that plea bargaining is unconstitutional because it takes away a person's right to a trial by jury. In fact, Justice Hugo Black once noted that, in America, the defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources. Throughout the process, the defendant has a fundamental right to remain silent, in effect challenging the State at every point to ‘Prove it!’” By limiting the powers of the police and prosecutors, the Bill of Rights safeguards freedom.
Plea bargaining is also criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endangers the correct legal outcome.
In the 1991 book Presumed Guilty: When Innocent People Are Wrongly Convicted, author Martin Yant discusses the use of coercion in plea bargaining.
Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense.
As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.
The theoretical work based on the Prisoner's dilemma
Prisoner's dilemma
The prisoner’s dilemma is a canonical example of a game, analyzed in game theory that shows why two individuals might not cooperate, even if it appears that it is in their best interest to do so. It was originally framed by Merrill Flood and Melvin Dresher working at RAND in 1950. Albert W...
is one reason why, in many countries, plea bargaining is forbidden. Often, precisely the Prisoner's dilemma scenario applies: it is in the interest of both suspects to confess and testify against the other suspect, irrespective of the innocence of the accused. Arguably, the worst case is when only one party is guilty—here, the innocent one is unlikely to confess, while the guilty one is likely to confess and testify against the innocent.
It has been argued that plea bargaining benefits society by ensuring that the guilty are not acquitted.
Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning his case and sending the defendant away to prison for 10 years, he may make a plea agreement for a 1-year sentence; but if plea bargaining is unavailable, he may drop the case completely.