What Is a Plea Bargain? Why Most Criminal Cases Never Reach a Trial

The prosecutor holds the charges and the accused holds the plea, and the bargain trades one for the other. In a charge bargain the prosecutor drops the more serious count or some of the counts in return for a guilty plea to the rest; in a sentence bargain the prosecutor recommends, or the judge indicates, a particular sentence in return for the plea; and in the commonest form the two are combined. The accused gives up the right to a trial, to confront witnesses and to make the state prove its case, and receives in return certainty and a discount; the state gives up the chance of the maximum sentence and receives a conviction without the cost and risk of a trial. A judge must accept the plea and is supposed to satisfy himself that it is voluntary and has a factual basis, which in a busy court takes about as long as reading this paragraph.

Trials are expensive and slow, and the number of cases rose faster than the number of courts. In the United States plea bargaining appeared in the city courts of the mid-nineteenth century, was practised in secret because judges disapproved, and became open in the twentieth as caseloads grew and the rights of the accused expanded, since a trial with full rights costs more; by 1971 the Supreme Court in Santobello v New York described it as an essential component of the administration of justice, to be encouraged. The same pressures produced the same result elsewhere in different clothes:

• •England and Wales: no bargaining over charges in the American sense, but a guaranteed discount of up to a third of the sentence for a guilty plea at the first opportunity, which produces guilty pleas in about 70 percent of Crown Court cases
• •Germany and Italy: negotiated agreements introduced in the 1990s and 2000s in systems that had prided themselves on having none
• •Georgia, Russia, India and dozens of others: plea agreements adopted since 2000, often on American advice
• •International tribunals: guilty pleas negotiated at the Yugoslav and Rwandan courts

The bargain works by making the trial dangerous. A prosecutor who wants a plea charges the maximum, threatens the maximum sentence, and offers to withdraw both for a plea, and the gap between the offer and the threat, the trial penalty, is what persuades; American studies find sentences after trial averaging three times those after a plea for the same conduct. Faced with that gap, an innocent person may rationally plead guilty, and the exoneration registries show that about a fifth of the people later cleared by DNA or other evidence had pleaded guilty to crimes they did not commit, most of them to escape a threatened sentence or to get out of jail where they were held awaiting trial. The bargaining is also invisible, since it happens in corridors and offices with no record, and the prosecutor, who in a trial is one party, becomes in a plea the party who decides the charge, the sentence and the outcome, with the judge ratifying. Critics from every political side have called it coercive, and the Supreme Court's own justices have described the system as one of pleas rather than trials.

The defence is practical and partly principled. Without pleas the courts would need to be several times larger, and the accused would wait years for trial, in custody or under charge; a plea gives the guilty a chance to accept responsibility early and be treated more leniently for it, spares victims and witnesses from testifying, and gives everyone certainty. Most accused people are guilty of something close to what they are charged with, and a negotiated outcome that fits the facts may be fairer than a trial that ends in acquittal on a technicality or in a sentence at the maximum. The problem, defenders concede, is not the bargain but the imbalance: a prosecutor with unlimited charging discretion and mandatory minimums to threaten with, against a defendant with a public defender who has a hundred other cases.

The proposals aim at the gap and the darkness. Limiting the trial penalty, so that a sentence after trial cannot be more than some fraction above the offer; requiring that offers be put in writing and disclosed to the court; restricting mandatory minimum sentences, which are the prosecutor's largest lever; ending pretrial detention for those who cannot pay bail, since jail is the pressure that produces the quickest pleas; and, in a few American jurisdictions, banning plea bargaining outright, which Alaska did from 1975 to the 1990s and found that the courts coped and that judges rather than prosecutors set sentences. None has spread widely. The trial that the constitution promises remains available to anyone who wants it, at a price that most people, guilty and innocent, decide not to pay.

A plea bargain is an agreement in which the accused pleads guilty in exchange for reduced charges or a lighter sentence, and it resolves around 95 percent of American criminal cases and a growing share elsewhere, because trials are costly and caseloads are large. It works through the gap between the offered sentence and the one threatened after trial, which persuades the guilty and some of the innocent, it moves the decision from judge and jury to prosecutor and corridor, and reforms aim to narrow the gap, record the offers and reduce the pretrial detention that drives the fastest pleas.