This paper examines the American criminal justice system's profound dependence on plea bargaining, arguing that the practice functions as an essential release valve for overwhelming court caseloads. Beginning with a historical overview dating to the post-Civil War era, the paper traces how plea bargaining evolved from a controversial practice into a dominant feature of both federal and state courts. It then surveys the key advantages—including caseload relief, scheduling efficiency, and sentence certainty—alongside significant disadvantages such as constitutional concerns, coercion of innocent defendants, and the inequitable treatment of those who cannot afford private counsel. The paper concludes that despite its well-documented flaws, plea bargaining will remain a fixture of American criminal justice for the foreseeable future.
Despite increasingly aggressive efforts to reform existing draconian sentencing laws in recent years, the United States still incarcerates more of its citizens than any other country today (Kann, 2019). This alarming trend indicates that the nation's state and federal courts have been kept very busy adjudicating hundreds of thousands of individual criminal cases each year. Although some critics of the court system charge that the gears of justice grind far too slowly, it is clear that even the current pace of adjudication would not be possible without plea bargaining. Indeed, the vast majority of criminal cases in the United States are settled through plea bargaining agreements each year (American Civil Liberties Union & Trivedi, 2020), and it is reasonable to posit that the gears of justice would essentially grind to a halt otherwise, especially at the federal level.
These trends inform the central thesis of this paper: ninety-seven percent of federal cases are settled by plea bargaining, and this provides a genuinely good deal to people facing long prison sentences. A prosecutor can offer a lenient charge if the defendant foregoes trial and admits guilt, thus functioning as a release valve for mounting caseloads.
The fact that so many cases are settled through plea bargaining agreements also raises the question of what would happen to the American criminal justice system without this alternative means of adjudicating criminal cases. Despite its virtual ubiquity and its popularity with many judges, prosecutors, and defense attorneys due to its efficiency (Ortman, 2020), the practice is certainly not without its detractors. For example, according to Slobogin (2016), "Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly accepted substantive and procedural premises of American criminal justice [because it] routinely results in punishment disproportionate to desert, and guilty pleas are an insult to procedural due process" (p. 7505).
Nevertheless, it is clear that plea bargaining represents an essential component of the American criminal justice system at present. This paper first briefly explores the background of plea bargaining in U.S. history, beginning with relevant definitions, followed by an examination of the evolution of plea bargaining in the American criminal justice system, a review of the key advantages and disadvantages of plea bargains, and a discussion of the implications of these alternative sentencing solutions for American society.
According to the definition provided by Black's Law Dictionary (1990), plea bargaining is "the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval" (p. 1152). Although every criminal case is unique, the plea bargaining process generally follows the same basic steps to achieve more efficient legal outcomes (Falk, 2010). Black's adds that the process "usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the charged offense, [and] plea bargaining procedures in the federal courts are governed by the Federal Rules of Criminal Procedure" (p. 1152). The same dictionary defines the criminal justice system as "the network of courts and tribunals that deal with criminal law and its enforcement" (p. 373).
As noted above, the nation's criminal justice system already faces a daunting caseload, and there has been a corresponding increase in the need for plea bargaining agreements even when this alternative produces suboptimal outcomes. For example, in Santobello v. New York (1971), the Court emphasized that "the formal 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 [and] properly administered, it is to be encouraged."
The term "properly administered," however, remains a highly subjective qualifier, making further analysis of these issues a timely and valuable enterprise. In this regard, the editors of the Harvard Law Review emphasize that while plea bargaining may appear to represent a legitimate adjudicatory alternative, criminal defendants who lack the means to hire private lawyers are routinely placed at a legal disadvantage through the plea bargaining process: "Procedural complexity not only places the poor at a comparative disadvantage by providing procedural tools they are less equipped to employ, it may also place them in a worse absolute position by making them more likely to be charged with crimes that carry longer sentences" (Simplicity as equality, 2007, p. 1587). In other words, many of the main advantages and disadvantages of plea bargaining exist along a continuum that directly relates to financial ability or personal connections.
Although various types of criminal justice systems date to antiquity, the use of plea bargains to resolve criminal cases in the United States only dates to the mid-19th century (Vogel, 1999). According to Walsh, "Plea bargains were almost unheard of prior to the Civil War [and] only in its aftermath, as waves of displaced Americans and immigrants rolled into cities and crime rates climbed, did appellate courts start documenting exchanges that resemble the modern practice — [functioning] as a release valve for mounting caseloads" (2017, para. 3). The cumulative experience of the American criminal justice system over the past 170 years makes clear that much has been learned which has fundamentally shaped the modern practice of criminal law. As Fischer (2009) observes, "Though originally an interloper in a system of justice mediated by courtroom battles, plea bargaining now dominates American criminal justice" (p. 855).
It is little wonder that there was a need for an alternative means of adjudicating criminal cases after the Civil War, given the enormous deprivations exacted on both sides of the conflict, and most especially on the Old South. Desperate people with families to feed and house frequently do desperate things to survive. While some informal "good old boy" arrangements for handling criminal cases were likely commonplace before the Civil War, the need for a formal alternative became especially pronounced afterward as the country's legal network refashioned itself into a cohesive whole. Much as the printing press facilitated the intergenerational dissemination of knowledge, the codification of precedential common law in the United States also drew increased scrutiny to plea bargaining as evidence mounted that the practice tended to favor the wealthy and place marginalized citizens at greater risk of injustice.
As a result, the increased documentation of plea bargaining in the legal canon attracted a corresponding amount of criticism from authorities who maintained that the practice circumvented justice. The historical record reflects the reaction of many legal practitioners: "Appellate courts 'all condemned it as shocking and terrible' [and] courts raised a range of objections to these early encounters, from the secretiveness of the process to the likelihood of coercing innocent defendants" (as cited in Walsh, 2017, para. 5).
Other critics charged that plea bargaining was simply another term for circumventing the criminal justice system on behalf of those criminals who could afford to do so, which invariably enriched the legal profession unjustly. Walsh (2017) cites the Wisconsin Supreme Court, which cautioned as early as 1877 that plea bargain agreements are "hardly, if at all, distinguishable in principle from a direct sale of justice" (as cited at para. 6). In other words, the pragmatic rationales advanced in support of plea bargaining have consistently been countered by arguments concerning its adverse effects.
Although state criminal justice systems differ in their approaches to plea bargaining, the best available data indicates that plea bargaining occurs at levels comparable to the federal system (Walsh, 2017). This finding implies that more than 90 million criminal cases are settled through plea bargaining agreements at the state level alone (State court caseload statistics, 2019) — a staggering figure by any measure. The number of criminal cases filed in the United States each year can reasonably be expected to increase in the coming years, in ways similar to the surge in plea bargaining that followed the Civil War, due to the severe economic disruptions attributable to the global Covid-19 pandemic and the corresponding rise in criminal activity among otherwise law-abiding citizens struggling to feed and house their families.
The net effect of these plea bargaining trends has been to diminish the perceived integrity of the U.S. criminal justice system in the eyes of the American public. As one legal authority notes, "The traditional image of a criminal trial has become all but obsolete in the American legal system [because] the overwhelming majority of criminal convictions (over 90 percent) result from plea bargains" (Plea bargains, 2020, para. 2). There are a number of advantages and disadvantages to plea bargaining agreements, but the harsh reality facing the American criminal justice system today is that "they are firmly entrenched in the system" (Plea bargains, 2020, para. 4).
"Nine key benefits for courts and defendants"
"Coercion, inequality, and constitutional concerns"
While it is reasonable to conclude that some form of plea bargaining has existed as long as there have been courts of law, the research is consistent in demonstrating that there are significant advantages and disadvantages to this adjudicatory alternative. For every advantage of plea bargaining, there is one or more corresponding disadvantage. As the nation continues to grapple with the ongoing economic aftermath of the global Covid-19 pandemic and its consequences — including unprecedented unemployment rates — it is also reasonable to conclude that plea bargaining agreements are not going anywhere soon and will remain a mainstay of the American criminal justice system for the foreseeable future.
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