Bargained Justice: Plea-Bargaining’s Innocence Problem and the Brady Safety-Valve

This article addresses the rise of plea bargaining in the American criminal justice system and the Supreme Court’s “great compromise” of 1970 in deciding Brady v. United States. Specifically, the article seeks to answer two questions. The first question is how and why the Supreme Court shifted from being opposed to bargained-for justice to being a supporter of it. The second question is whether the Court’s decision in Brady showed its willingness to permit incentives offered in bargaining that are so powerful that innocent defendants are induced to plead guilty.

As to the first question, the article notes that plea bargaining began to increase in the early twentieth century due to several factors, including the rise in criminal cases generally and the growth of prosecutorial discretion throughout the 1900s. However, during this increase in the use of plea bargaining, Supreme Court jurisprudence showed opposition to the practice because of its unconstitutionality, leaving officers of the court to bargain in the shadows of the law.  Despite this initial view, in the 1970 Brady decision, the Court held that plea bargaining was constitutional so long as the defendant entered his guilty plea voluntarily and intelligently. In consideration of the necessity of judicial economy and other factors, the great compromise was born. The Court would permit plea bargaining if the pleas met requisite constitutional standards.

As to the second question,  the article notes that plea bargaining has given rise to a significant problem: innocent defendants pleading guilty. The Court intended for Brady to act as a “safety-valve” for defendants, limiting the amount of pressure that a prosecutor could place on a defendant to plead guilty. However, this safety-valve has failed, and that can be measured by the increasing number of innocent defendants who are pleading guilty. The article analyzes this phenomenon and argues that modern-day plea bargaining may now be unconstitutional.

“…[W]hile plea bargaining’s innocence problem serves as an indication that we have gone beyond the types of incentives and persuasions to plead guilty permitted by the Brady safety-valve, the Supreme Court did not intend that this threshold on pressure apply only to the innocent. Rather, the innocent serve as a litmus test for plea-bargaining more generally. If prosecutors are offering incentives that are sufficient to force innocent defendants to plead guilty, these same types of incentives are equally unconstitutional when offered to guilty defendants because both sets of defendants are involuntarily entering their pleas.” p. 91