Plea Bargaining

Though plea bargaining helps the criminal justice system run efficiently, prosecutors’ practices raise several procedural concerns that undermine the rule of law, contribute to racial disparities in sentencing, and drive over-incarceration. The bargaining process features a significant power imbalance, where prosecutors have sole charging discretion and increased access to information. Plea negotiations occur behind closed doors, subject to minimal public oversight or guidelines. Prosecutors often use coercive tactics—from pretrial detention and time-limited offers to overcharging and imposing “trial penalties” upon defendants who exercise their right to jury trial—to secure guilty pleas even when the defendant is factually innocent. Prosecutors’ personal preferences, incentives, and biases contribute to disparate outcomes. In their obligation to pursue justice, however, prosecutors can instead adopt practices that strengthen defendants’ due process rights and reduce coercion. Fair and Just Prosecution highlights jurisdictions that have adopted effective practices and recommends three broad classes of reforms: (1) instituting charging and sentencing standards that promote consistency and limit harsh or arbitrary case outcomes; (2) increasing transparency and procedural safeguards; and (3) promoting and protecting avenues for justice and mercy.

“The incentives that drive overreliance on plea bargaining are also closely tied to efforts to rethink how prosecutor’s offices, which have traditionally tied evaluations and promotions to metrics such as conviction rates, can operate instead to reward the pursuit of justice. Ultimately, these structural and systemic reforms will help reduce the reliance on guilty pleas and also make the plea process, when used, more fair.” p. 6