The American Experience with the Prosecutorial Overuse of Plea Bargaining

Abstract

INTRODUCTION Trial by jury in criminal cases, which is guaranteed by the United States Constitution, has largely been replaced by plea bargaining, a practice that has become the primary means by which the overwhelming majority of criminal prosecutions are resolved in both Federal and state courts. The American experience with the prosecutorial overuse of plea bargaining is reflected not simply in the frequency with which criminal cases are concluded by means of a negotiated guilty plea. Rather, structural features of the legal framework, such as legislatively enhanced criminal penalties and mandatory minimum sentences of incarceration, promote and drive the use of plea bargaining. They do so by altering the balance of power in plea negotiations in the prosecutor's favor, to the detriment of the defendant. Moreover, they effectively shift control of the sentencing process from judges to prosecutors, who have the power to determine the charges that are brought against the defendant. As a result, for the most part, plea negotiations do not take place on a level playing field. Nevertheless, plea negotiations promise to be an enduring feature of the American criminal justice system. Consequently, the ongoing challenge will be to ensure that, to the extent possible, plea bargaining is rendered more fair and equitable and that increased transparency and accountability are brought to the process. THE CURRENT STATUS OF PLEA BARGAINING The United States Supreme Court has stated that the American criminal justice system, as it now stands, “is for the most part a system of pleas, and not a system of trials.” In describing that reality, the Court noted that plea bargaining “is not some adjunct to the American criminal justice system; it is the criminal justice system.” Consequently, the Court observed, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” The use of plea bargaining in the United States has evolved over time. When the American legal system first took shape, trials and not negotiated guilty pleas were the means by which criminal cases were most frequently brought to a conclusion. Indeed, “[d]uring most of the history of the common law, pleas of guilty were actively discouraged by English and American courts. For centuries, litigation was thought ‘the safest test of justice’.