Plea Bargaining: A Broken System
By Lauren Gilbert ‘24
Half of the bill of rights deals with the rights of those being arrested or who have been arrested, including the famed right to a speedy trial in front of a jury. But despite the widespread notion that the regulation of our criminal and civil justice process is fair, the United States is the world’s leader in incarceration rates. The sentence that is decided by the outcome of a jury depends both on system-wide sentence recommendations and individual judges that can lead to high incarceration rates, such as lengthy sentences for drug possession. The inconsistent ways in which different crimes are sentenced is a tool of oppression widely associated with discriminatory mass incarceration. While the common assumption is that inconsistent sentencing only occurs after a jury has decided on a verdict, the reality is that 97% of federal convictions and sentences are decided not by the outcome of a speedy trial, but by a plea bargain.
The process by which a criminal conviction is found without going to trial is plea bargaining, defined as a resolution from both sides of a criminal case where the defendant pleads guilty to a lesser charge rather than going to trial before a jury. The general appeal is that pleading guilty and agreeing to a sentence is less subject to variability than actually going to trial, but the entire process then is based upon assumed guilt. Defendants agree to a conviction based on their expectation of what their conviction will be in court, with the estimate being given by people that do not want to go to the hassle of a trial. While lawyers can move on with their lives, the defendants go to jail. They are shuttled in and out, assuming their guilt, and trading one bad system for another. The way in which defendants agree to a conviction within the system of plea bargaining and the way the system is regulated could be changed in a way that could trigger large scale reform. As a system that is related to, but separate from the formal trial process, plea bargaining, if reformed, could be an effective and broad change to the growingly harsh entity that is the United States Criminal Justice System.
At first glance, the fact that the process of plea bargaining is concise and convenient seems positive. In truth, the current legal process depends on plea bargaining’s efficiency to even function. Without plea bargaining, the entire system would be bogged down by cases that have to go through a lengthy trial process. Plea bargaining is thus not going away anytime soon. . This is exactly why it can be an effective route for reform, an alternative to an already corrupt system.
Plea bargaining is a way for a case resolution without a trial—no jury, no judge. The defendant pleads guilty in hopes of getting a lesser sentence than what would have been given in by going to trial. As of now, however, the process disregards the system that it’s supposed to replace. Some may argue that plea bargains could be positive, because the formal trial process itself has been shown to be unfair and ineffective. However, it lacks the kind of regulation that it needs. While the existing processes of the American legal system are slow and riddled with corruption and policies which perpetuate systemic oppression, it’s still a system. In contrast, plea bargaining is informal. The lack of a formalized system does nothing more than allow for those same policies to be reflected in an inconsistent way, making it harder to pin down its problems and work towards solving them.
Saying that plea bargaining is a system is a fairly generous description. In essence, it’s a private affair. The details of a plea bargain are not usually made public until the presentation of the plea bargain and the case made before a judge that has to approve it. Behind the scenes, though, plea bargaining is a process that allows prosecutors (and sometimes defense lawyers) to intimidate the defendant into pleading guilty. In some cases, the intimidation stretches to the point where innocent defendants plead guilty to a crime that they did not commit. Instead of plea bargaining being a viable alternative to going to trial, defendants are assumed guilty. The only point of negotiation is how long a defendant will go to jail for a crime that they are assumed to be guilty of.
There are, however, ways to make plea bargaining the alternative that it should be, switching the focus from one that assumes guilt to a fair process which is accessible and fair towards defendants. One way that this could be done is through regulations of prosecutor transparency. As it is now, the state prosecutors have little to no requirements to disclose information about the case that could be used to argue for a shorter or different sentence. Requirements for information disclosure and transparency alone could thus help make plea bargaining a more standardized process that would be inherently more fair towards defendants than the current process. There are other present structures that contribute to an unfair system of plea bargaining, such as a recommendation but no requirement for judges to look into each case before they approve it. Both of these problems are ones that could be fixed and which would help regulate and take steps towards effective reform.
Further steps in this process could include not orienting the plea in terms of the worst case scenario, which would be going to court. As of recently, sentences if one is found guilty in trial have become even stricter, making the appeal of poorly presented and unfair plea bargains more appealing than they would be otherwise. Plea bargaining should not be seen as just an alternative to the process of going to trial (which allows for comparisons between potential trial sentences and offered plea bargain sentences), but rather what it really is, which is a separate process in and of itself. The reality is that the chances of actually going to trial are quite slim– plea bargaining is the default. Plea bargaining needs to be reframed with the mindset that the bargain should fit the crime within established (and more fair) norms of the plea bargaining system, rather than being marginally less bad than the outcome of a trial that, in all likelihood, isn’t going to happen.
Plea bargaining is a system that is not going away, but that can be changed. A reorientation towards plea bargaining could also work to influence the rates of mass incarceration by potentially lowering the average length of a sentence. More than anything, plea bargain reform could also change the way incarceration is viewed at a level that it operates on. As of now, plea bargaining serves as an expedited route to jail, when it could alternatively be seen as something real that can be reasonably approached and reformed in the broad system of mass incarceration.