Plea Bargaining – An Effective Tool for Prosecutorial Abuse of Power


                                                                                                        (Graphic:  The Veritas Initiative)


“97 percent of federal convictions and 94 percent of state convictions are the result of guilty pleas.” (USSC, Missouri vs. Frye, 2012)

Think about that for a minute — 19 out of 20 criminal cases never-go-to-trial.

These cases are disposed of through a guilty plea that resulted from a plea agreement.  The defendant never gets a trial, and goes directly to jail.

It’s called “plea bargaining,” but there is little-to-no actual bargaining that takes place.  A plea offer can be made even before the case goes to a grand jury, and the defendant has no idea how strong, or weak, the prosecutor’s case might be. The prosecutor has a very, very long list of often-overlapping charges to pick from that can be “stacked” to build a breathtakingly long anticipated sentence, which he can use to “bargain” (read threaten) with the defendant.  And the ability to “stack” is further augmented for charges that carry mandatory minimum sentences.  It’s pretty much a “take it or leave it” deal.  The ONLY bargaining power the defendant has is to refuse the plea offer, forcing the prosecutor to take the case to trial.  This is the genesis of the so-called “trial penalty,” which has been well covered on this blog here and here.  The defendant can take whatever the prosecutor offers, or expose himself to an exceedingly long sentence at trial.

In accepting a plea agreement, the defendant obviously gives up his constitutional right to a jury trial, but he may also have to give up his right to appeal, or to file civil suit, or to even talk about the case.  And then once convicted of a felony, there is a whole list of other collateral consequences as well.

Amelia Whaley is a JD candidate at the Duke University School of Law.  While working as an intern for the Center for Prosecutor Integrity, she wrote a paper summarizing the practice of plea bargaining as it exists today in the US.  I think it is just excellent, and is the best overall synopsis of plea bargaining I have seen. If you want to understand what plea bargaining is all about, and how it really works, please read Ms. Whaley’s paper here:  (paper temporarily taken down for edit by author)

If you’re interested in a little further reading, this article by Timothy Lynch at the Cato Institute, Cato – Plea Bargains, covers the 1978 US Supreme Court case (Bordenkircher v. Hayes) that established the precedent for plea bargaining – a case in which a man wound up in prison for life – for passing a bad $88 check.

7 responses to “Plea Bargaining – An Effective Tool for Prosecutorial Abuse of Power

  1. Mr. Locke, Great post and article. Your information is a great public service.

  2. If plea bargain is solely to save the prosecuting government resources of time and money then this itself becomes admission of guilt of the government excessive law making and excessive law enforcement. Simply put: Too Many Laws – many are Un-Constitutional, frivalous, falsely applied, and unequally enforced just to list a few of many. “Another vote for a democrat, or a republican is another vote to send someone to Washington to make more Laws that take away more of your Rights.”
    — Ross Perot

  3. Plea bargaining appears to be helpful to the Prosecutor but not a good option for the accused.

  4. Pingback: The Innocent Citizen’s Justice System Survival Guide | Wrongful Convictions Blog

  5. I think that most people who understand law know plea bargains are threats not offers. They threaten people during the process that if they don’t accept the “deal”, which is designed to strike fear, that they will be put away for the maximum time etc. This equates to an attitude that we Prosecutors don’t suggest sentences based on fairness or reasonability but on weather the state has to tolerate the Constitutional rights of the accused. Basically the pleas say “If you dare to exercise your right to trial we are asking for the harshest punishment possible and we don’t even care if the harshest punishment is unfair in your case because we just want more wins and money for the state.” Most people accused of crimes are legally uneducated people and/or people who just can’t afford to lose their jobs, or be ripped from their children, will just say they are guilty to get it over with and go home. I think we would all be disgusted if we knew how many were really not guilty. Anyone facing minor sentences would likely benefit from proceeding to trial as most prosecutors will drop charges because they don’t know how to even fight a case anymore. Honestly I think it should be lawful for a person accused of a crime to submit all prosecutors’ offers in their sentencing trials and have the right to receive the lesser sentence so long as the crime is the same and not an offer on a lesser charge. Prosecutors should not be allowed to trump up charges as punishment for exercising the accused right to trial. If it’s good enough for 1 day in jail if you say “I’m guilty” then it’s good enough for 1 day if found guilty by a jury/judge. The issue of cost to the state is irrelevant, our duty is to give everyone a fair trial and cost is not an issue. The state should not be allowed to punish you because Constitutional rights might cost money to enforce. I wish more cases were dropped and or reversed on these trumped up sentences. I wish more Prosecutors were reprimanded in these cases for these threats.

  6. I want to know how pleas are not a form of fraud? I have seen career criminals take pleas that state they have “no prior convictions” which is not true. I know why the lie is told. The lie changes things which allow the use of plea sentance agreement. Which now leads to defrauding documents to obtain a desired out come.
    But if you mess up it all goes back to the truth.

  7. Attorneys that think the prosecutor is going to hand over ALL discovery, discovery that is in defendants favor of not guilty just because the law says they have to are unknowing of human nature. I don’t know the odds.

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