Plea Bargaining

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Plea bargains settle criminal cases almost every day in every criminal court throughout the country, but too often they are a flawed part of the Criminal Legal System. According to some legal experts, they encourage innocent people to plead guilty to crimes they did not commit, further contributing to mass criminalization in the United States. 

What are plea bargains?

Plea bargains are deals between the prosecution and the defense that resolve cases without going to trial. Defendants decide to forego a trial and admit guilt in exchange for a lesser sentence.

Plea deals are common because the defendant avoids the risk of receiving the maximum sentence, and both sides avoid trial costs; 94 percent of felonies at the state level are decided by plea bargains and 97 percent at the federal level. Even higher percentages are estimated to decide misdemeanor cases.

“We put together the most cumbersome and expensive trial system that the world has ever seen, and then we decided we can’t do it for all but a tiny, tiny portion of people,” Albert Alschuler, a retired law professor, told the Atlantic. “It’s like trying to solve the transportation problem by giving Cadillacs to two percent of the population and making everybody else walk.”

Critiques of plea bargains are not new, and their legality has been challenged in court many times. The stance of the Supreme Court of the United States is best illustrated by the unanimous 1969 landmark decision Brady v. U.S. ruling in favor of the use of a plea bargain. The opinion stated, “They are inherent in the criminal law and its administration.”

Turning the innocent guilty

Possibly the greatest critique of plea bargains is how they coerce innocent defendants into accepting a guilty plea. Prosecutors may overcharge a defendant to incite fear, making a plea deal seem more favorable than a trial. And that fear is rational, according to the U.S. Department of Justice, whose study found that defendants who refuse a plea bargain and go to trial often receive harsher sentences.

“[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes,” Supreme Court Justice Anthony Kennedy wrote in a 2011 decision. “This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial”

Also, prosecutors can reduce or drop charges for friends or family members charged with a crime to persuade a defendant to plead guilty. Tactics to coerce innocent defendants into admitting guilt are built into the legality of plea bargains, and there is little restriction on prosecutors seeking a guilty verdict.

“So if a prosecutor says, ‘I’ll shoot you if you don’t plead guilty,’ then the plea is invalid,” Alschuler told the Atlantic. “But if he threatens to charge someone with a crime punishable by death at trial and the defendant pleads guilty, then the plea is lawful.”

Justifications for plea bargaining

Despite the aforementioned critiques, plea bargains are not all bad. For instance, prosecutors can use them to advance a case involving organized crime, gathering information about larger actors by offering deals to lower-level actors. And, as MTIP Legal Director Caiti Carpenter explained, plea bargains can provide good deals to defendants facing a large sentence by giving them a platform to negotiate their sentence.

“I think they can be helpful and hurtful at the same time,” Carpenter said. “I think for that people that actually did commit the crime,it is necessary to have a meaningful ability to negotiate.”

For example, defendants may have responsibilities like a child, job, or housing that they may lose if they wait for trial in a jail cell, and “pleading out” may be a more favorable circumstance.

“I do think that people who are innocent plead guilty because they weigh the cost-benefit and say, ‘This makes more sense in the present moment,’” Carpenter said. That’s a problem with our system.”

Ultimately, Carpenter agrees with courts that plea bargains are an essential part of our criminal legal system, but they are not always used appropriately. She said it is incredibly common that somebody innocent will take a plea bargain. Ultimately, they are more of a practical reality.

Benjamin Franklin once wrote, “It is better 100 guilty persons should escape than that one innocent person should suffer.” 

But to Carpenter, “That’s not how the system works. We are a system of efficiency, more often than not.”


Complete rid of plea bargaining in the system is commonly agreed to be unlikely. It is unlikely plea bargain will ever fully be eliminated from the system. But most ideas for reforming plea bargains center around two options: (1) make plea bargaining more transparent and accountable or (2) make them less common and trials more attainable.

Some states have safeguards in place to address common concerns. In Connecticut, judges mediate plea bargains to offer guidance on the merits of the proposed deal, and in states like Texas and North Carolina, both sides share the evidence of the case before a plea bargain is made.

In Philadelphia, bench trials—trials where the judge takes the place of a jury—are making trials faster but still upholding the burden of proof. 

In 2015, 72% of defendants in Philadelphia pled guilty opposed to the national federal percentage of 97%; 15% bench trial.