Pleading Guilty in Lower Courts

Abstract

The simple logic of plea bargaining is so compelling that it is now often taken for granted, with the result that its value as an explanation is diminished. Differences among a host of distinct practices may be obscured or ignored when they are lumped together under this single term. This comment examines the practice of pleading guilty to petty offenses in lower courts and questions some of the long-standing assumptions about the dynamics of that process. It shows that though plea bargaining of the classical type rarely occurs, the term itself and certain aspects of bargaining continue to serve important symbolic functions. In the conventional view of plea bargaining, the defendant extracts concessions, either the reduction of charges or sentence recommendation, in exchange for pleading guilty. This view is based on the assumption that, in the absence of such concessions, the defendant will go to trial. However, many defendants in lower criminal courts never seriously contemplate trial, although they do plead guilty. The question is why? The virtual absence of trials in lower courts is no doubt partially attributable to the concessions just mentioned, but this is an incomplete answer for such a widespread phenomenon. A more important reason for the absence of trials in the lower courts lies in the economics of the process. If the state's case is weak, the prosecutor is quite likely to drop the charges-contrary to myth-and in many jurisdictions about as many arrests are disposed of in this manner as are handled through guilty pleas. Of those convicted on original misdemeanor charges, few end up serving time in jail. The typical outcome is a suspended jail sentence together with probation or a fine. By comparison, the time, effort, and expense of going to trial are overwhelming. To illustrate, a private attorney may charge $200 or more per day to conduct a trial, yet few fines exceed $50. Prosecutors are aware of this; they know that, for all practical purposes, defendant threats to go to trial are usually hollow and will only rarely be carried out. In fact, trials in the lower courts are so infrequent that some prosecutors and judges regard them as a welcome change of pace, an unusual