LEGAL GUIDE
Written by attorney Robert John Wittmann | Oct 3, 2013

Plea Bargaining: An Overview

Most Americans have a mistaken view of the criminal justice system, one formed by too many years of watching TV shows like Matlock and Perry Mason. Contrary to popular wisdom, most criminal cases aren’t resolved through trials. Judges and juries don’t weigh proof or determine the adequacy of evidence in 95% of cases. Instead, Defendants are encouraged to take something called a “plea bargain." Here, the state promises to lower your charge and sentence. In return, you must promise to plea guilty to a lesser charge and waive your rights to a trial and appeal. Many Defendants, worried about the possibility of receiving a tougher sentence, take the deal.

Most of the time, this is a reasonable method of resolving criminal cases. Many have said that the system would go bankrupt if the courts were forced to have a trial on every case that came through their doors. So there’s a great incentive for Prosecutors to give Defendants good deals in many situations.

For example, let’s say we’re dealing with a first time offender who needs psychiatric assistance or medical treatment for a drug problem. Here, the Prosecutor may take these issues under consideration and reduce the charge. This happens more often than you think. Contrary to popular opinion, Prosecutors are people, too.

On the other hand, there are other situations where Prosecutors are more likely to play hardball. For example, police and Prosecutors sometimes overcharge Defendants and the Complaint has no reflection in reality. Sadly, interactions with prosecutors often take on the appearance of high-level poker games: those with weak hands often bluff and pretend they have strong hands, and those with strong hands either immediately display them, or play a waiting game to see if the pot gets any sweeter.

Now, what happens if you’re innocent? Believe it or not, despite all the advancements the United States has made over the years in terms of Civil Rights and criminal justice, innocent people do occasionally get accused and charged with crimes they did not commit. I've heard absolute horror stories where innocent people go to talk to the police to "clear things up," only to wind up in handcuffs, charged with a crime they didn't commit. It doesn't happen often, due to the high degree of ethics and professionalism that pervade most of our nation's police departments. That said, there are a few bad apples out there, as there are in all human institutions, and a few bad apples can set examples that folks lower down the totem pole tend to follow, and before you know it an avalanche of abuses can follow within a short period of time. That's why we must always be vigilant in the protection of our rights.

As an attorney, I believe that this phenomenon---innocent people pleading guilty--is one of the worst possible things that can happen to a person in our nation. Numerous Law Review articles have been written and multiple documentaries have been produced, showing that the modern institution of “plea bargaining" itself, as currently practiced (where trials are actively discouraged), can actually hurt innocent people when they are charged with a crime. Here, innocent people may feel enormous pressure to plea guilty, through the pressures of coercion and duress and fear of excess punishment, even though they are completely innocent.

Legal scholars argue that had these innocent people gone to trial (something that was much more common back in the 1960s and 1970s), there would have been a strong chance of acquittal in a large number of cases, all other things being equal.

A few years back, PBS had an excellent documentary on their TV Series, Frontline, which discussed how criminal courts in America handle plea-bargains. It was an excellent program and I think all my clients should watch it. I also think they should read all the essays and articles PBS had hyperlinks to. The best clients are informed clients.

Link to Frontline’s TV Show on Plea-Bargains: http://www.pbs.org/wgbh/pages/frontline/shows/plea/ (http://www.pbs.org/wgbh/pages/frontline/shows/plea/)

Link to Frontline’s TV Show on the Real World of Prosecutors and Defense Attorneys. http://www.pbs.org/wgbh/pages/frontline/shows/bostonda/ (http://www.pbs.org/wgbh/pages/frontline/shows/bostonda/)

Important Scholarly Articles on Both Sides of Plea Bargaining Issue:

"The Repeal of the Sixth Amendment by the Courthouse Crowd," by Albert W. Alschuler & Andrew G. Deiss. From The University of Chicago Law Review, Volume 61, Number 3, Summer 1994, "A Brief History of the Criminal Jury in the United States," Albert W. Alschuler & Andrew G. Deiss, pages 921 - 928; http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/uchicago.html (http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/uchicago.html)

"On the Myth of Written Constitutions: The Disappearance of the Criminal Jury Trial," by John H. Langbein. From Harvard Journal of Law and Public Policy, Volume 15, Number 1, Winter 1992, pages 119-127; http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html (http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html)

"The Case Against Plea Bargains," by Timothy Lynch. Cato Institute. Regulation. Fall, 2003. http://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf (http://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf)

"Plea Bargaining Outside the Shadow of Trial." Stephanos Bibas. Harvard Law Review. 117 Harv.L.Rev.2463 (2004). http://www-tc.pbs.org/wgbh/pages/frontline/shows/plea/etc/bargain.pdf (http://www-tc.pbs.org/wgbh/pages/frontline/shows/plea/etc/bargain.pdf)

"Personal Failure, Institutional Failure, and the Sixth Amendment," by Albert W. Alschuler. New York University Review of Law and Social Change, Volume XIV, Number 1, 1986, pages 149-156; http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/nyu.html (http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/nyu.html)

If you are innocent, and your situation matches that of the people illustrated on the Frontline TV show above, it is extremely important that you contact an attorney as soon as possible. In an ideal world, somebody who is innocent should never be coerced into pleading guilty to a crime they did not commit. The key word here, though, is "coerce." Furthermore, there are rare cases when innocent Defendants may want to take a plea-offer and escape harsh punishment, due to the overwhelming (albeit false) and biased evidence against them, and the likelihood of an extraordinarily draconian sentence. For example, I've read of cases from the 1960s where Defendants were charged with crimes in the Deep South, who had to take a plea deal and sit in jail for years, because had they contested their charges, all-white, racist juries would have surely convicted them, convictions that would have almost definately resulted in execution.

Additional resources provided by the author

"The Repeal of the Sixth Amendment by the Courthouse Crowd," by Albert W. Alschuler & Andrew G. Deiss. From The University of Chicago Law Review, Volume 61, Number 3, Summer 1994, "A Brief History of the Criminal Jury in the United States," Albert W. Alschuler & Andrew G. Deiss, pages 921 - 928; http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/uchicago.html "On the Myth of Written Constitutions: The Disappearance of the Criminal Jury Trial," by John H. Langbein. From Harvard Journal of Law and Public Policy, Volume 15, Number 1, Winter 1992, pages 119-127; http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/harvard.html "The Case Against Plea Bargains," by Timothy Lynch. Cato Institute. Regulation. Fall, 2003. http://object.cato.org/sites/cato.org/files/serials/files/regulation/2003/10/v26n3-7.pdf "Plea Bargaining Outside the Shadow of Trial." Stephanos Bibas. Harvard Law Review. 117 Harv.L.Rev.2463 (2004). http://www-tc.pbs.org/wgbh/pages/frontline/shows/plea/etc/bargain.pdf "Personal Failure, Institutional Failure, and the Sixth Amendment," by Albert W. Alschuler. New York University Review of Law and Social Change, Volume XIV, Number 1, 1986, pages 149-156; http://www.pbs.org/wgbh/pages/frontline/shows/plea/etc/nyu.html Link to Frontline’s TV Show on Plea-Bargains: http://www.pbs.org/wgbh/pages/frontline/shows/plea/ Link to Frontline’s TV Show on the Real World of Prosecutors and Defense Attorneys. http://www.pbs.org/wgbh/pages/frontline/shows/bostonda/

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