Plea Bargaining: Costs, Coercion, and Disparate Impacts in the American Justice System

Plea bargaining is the process by which a defendant agrees to plead guilty to a criminal charge in exchange for concessions from the prosecution, such as a reduction in charges presented, a lighter sentence, or the dismissal of additional counts. Plea bargaining overwhelmingly dominates case adjudication in the American criminal justice system, accounting for 90% of criminal trial resolutions.

While heralded as a guarantor of justice, plea bargaining is plagued by institutional failures inherent in the American criminal justice system and largely fails to ensure justice is duly carried out. The justifications for this argument are twofold: (1) Plea bargaining is a largely unsupervised process; there is no framework for developing plea offers, nor guidelines to ensure offers are fair. (2) Plea bargaining exacerbates existing racial disparities in the criminal justice

system. It is a product of, and vessel for, prosecutorial and judicial bias.

Prosecutorial Power and the Faustian Bargain

Prosecutors wield enormous, largely unchecked judicial power in plea negotiations. The result is a “Faustian bargain”: defendants may secure immediate relief from incarceration, yet still face future imprisonment or the lasting stigma of a felony conviction.

There are three main areas of concern with prosecutorial power in the plea-bargaining debate: (1) little room to negotiate. Defendants cannot easily renegotiate or walk away from an offer, as prosecutors may be enticed to add charges or insist on mandatory minimums. (2) Because the first offer from a prosecutor looms large in plea negotiations, any apparent bias throughout the offer process creates a ceiling for punishment that defendants seldom surpass. (3) Prosecutors have little to no guidance on plea ethics and are generally free to make deals at their discretion.

The plea-bargaining system is fundamentally designed to favor prosecutors. The process itself compels guilty pleas, placing prosecutors and defendants in an asymmetrical power structure. Prosecutors effectively determine the “rules of engagement” before a trial begins. Once charges have been filed, prosecutors enjoy virtually unlimited discretion in determining the plea deal offered to a defendant. Prosecutors may stack counts or mandatory minimum offenses and offer a “discount” when offering a plea deal to pressure a defendant. Prosecutors “anchor” the plea-bargaining process; defendants feel they must take a deal immediately because counter-offering or undergoing a trial is not possible. Such issues are even more salient when defendants lack adequate legal representation, are inexperienced with the legal process, or simply lack the necessary resources to withstand a drawn-out trial. Guilt is often extracted coercively and without the consent of the defendant.

Coercion of the Innocent

The consequence of prosecutorial power imbalance is severe; innocent defendants are more likely to plead guilty on account of coercion and pressure. Prosecutors and judges are incentivized to increase disposition rates, that is, the number of cases resolved by a court, rather than ensure every case is resolved justly. Defendants in pretrial detention are especially vulnerable to coercion, simply because they wish to get out of jail. Risk-averse people (especially the detained) will rationally choose a sure, shorter sentence over the uncertain chance of acquittal, even when they are innocent. Prosecutors additionally use time in detention as leverage to convince defendants to accept deals. Fearing more time away from jobs, familial responsibilities, or other commitments, desperate defendants are more likely to agree to plea deals that seem immediately beneficial, even when they are not.

Racial and Economic Disparities in Plea Bargaining

Policing and charging are racially biased, and those biases are compounded by the plea-bargaining system. Heavily policed neighborhoods are often predominantly Black and Latino, and face disproportionately high charging and arrest rates. A single arrest for any reason can permanently scar an individual’s record, and once in the system, Black and brown defendants across the board receive less favorable plea deals and experience overt racial bias from prosecutors. All things equal, White defendants are significantly more likely than Black defendants to have serious charges dropped or reduced during the plea negotiation process. Black defendants often receive longer plea sentencing recommendations for the same offenses as their White counterparts. Racial discrimination, undeniably present in every facet of the American justice system, is worsened where plea bargaining is employed.

From an economic standpoint, poor defendants (who are disproportionately people of color) cannot afford bail, legal fees, or to wait in pretrial detention. Such defendants are statistically more likely to accept the first plea deal they receive, a deal that is often designed to appear fair while maximizing punishment. The result is a two-tier system: wealthier defendants may risk trial, but indigent ones have no choice but to accept a plea deal. The upshot is that plea bargaining both preys on and reproduces economic inequality by favoring rich defendants who can afford to navigate the complexities of the American legal system and coercing poor defendants who cannot.

Systemic Consequences

The construction of the plea-bargaining system runs fundamentally counter to any notion of justice. Dependence on plea bargaining demonstrates the American criminal justice system’s obsession with efficiency over fairness. Convictions are negotiated deals hidden from the public and immune to any accountability. Communities suffer the most; public trust in legal institutions declines when innocent people believe pleading guilty is the only solution to their legal woes.

The purpose of this article is not to say that plea bargaining cannot, in any instance, be just. It is to say that in its current form, plea-bargaining is wildly imperfect, and the ethical costs far outweigh potential benefits. To restore fairness, reforms are needed: from banning mandatory minimums and ensuring robust counsel, or demanding transparency on plea offers, and training prosecutors to check biases. Prosecutors could, for example, employ a system of blind bargaining where the deal development process includes a blind assessment of a defendant and focuses solely on the nature of the crime committed. Until such reforms are made, the plea-bargaining system will continue to reproduce injustice at the expense of innocents.

References

Alkon, Cynthia. “Bargaining Without Bias.” Rutgers University Law Review 73, no. 22 (2021): pp. 1338-1371. ssrn.com/abstract=4036850.

Chuah, Emily. “Can California Pleas Resurrect Its Unconstitutional Conditions Doctrine?” California Law Review 112, no. 209 (2024): pp. 210-260. lawcat.berkeley.edu/record/1289127 .

Dholakia, Nazish. “How the Criminal Legal System Coerces People into Pleading Guilty.” Vera Institute, 4 April 2024. www.vera.org/news/how-the-criminal- legal-system-coerces-people-into-pleading-guilty#:~:text=In.

Lord, David A. “Breaking the Faustian Bargain: Using Ethical Norms to Level the Playing Field in Criminal Plea Bargaining.” Georgetown Journal of Legal Ethics 35, no. 73 (2022): pp.74-103.

“Research Finds Evidence of Racial Bias in Plea Deals.” Equal Justice Initiative, 26 October 2017. eji.org/news/research-finds-racial-disparities-in-plea-deals/.