In Defense of Plea Bargaining

In this article, the author argues that, while there are flaws with plea bargaining that stem from abusive state tactics, the plea bargaining practice itself is constitutional. Thus, the author suggests that reform, rather than abolition, of plea bargaining is necessary. In response to critics who argue that plea bargaining is unconstitutional, the author explores legal history at both the state and federal levels, concluding that the right to a jury trial is alienable. In analyzing the Supreme Court’s decision in Bordenkircher v. Hayes, the author argues that because a defendant has no right to receive leniency from a prosecutor in the charges and potential sentence they face for their crimes, their failure to get leniency cannot be a deprivation of any right. The author then addresses the practice of innocent defendants accepting plea deals out of fear of facing a greater sentence if they pursue a trial. The author argues that this is an indictment of the trial system rather than plea bargaining.

“… [I]t is true that the Framers included a right to trial by jury among our vital constitutional guarantees, but that does not mean defendants lack the freedom to waive that right or trade it to the state in exchange for a lighter sentence. Mere efficiency does not justify resorting to a constitutionally flawed procedure. But there are sufficient justifications for plea bargaining. Its flaws are procedural, not constitutional, and it needs reform, not abolition.” p. 31