Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform

Though extensive research identifies the most significant catalysts as defendants’ own desire to confess or a need to rescue courts from burdensome caseloads, plea bargaining became more prevalent in the United States because of the parties’ impulse to negotiate. Plea bargaining became the norm for settlement in the pre-trial stages as state power expanded and as prosecutors were able to process more cases. “Repeat players” accustomed to routine dispositions could predict trial outcomes and assign sentences. However, increased prosecutorial power led to significant trial penalties, whereby the Government could punish defendants for exercising their right to jury trial instead of accepting a plea deal. A study of historical case data demonstrated that the trial penalty is present in all offense categories. The penalty has become so severe that defendants choose to forgo trial and avoid harsher punishment—even if they are factually innocent. These pleas are arguably involuntary. The current system also undermines the standard of proof necessary to convict. As the Supreme Court emphasized in Blakely v. Washington, judges cannot sentence when relying upon facts on which the defendant has not been convicted, but it is difficult to demonstrate proof beyond a reasonable doubt in plea procedures that circumvent trial. The author proposes reforming pretrial procedures such that all cases be given a preliminary hearing, only after which the prosecutor may make a plea offer on the record with an accompanying list of facts on which the offer is based. By preventing defendants from pleading guilty before the state has made a meaningful showing of proof, actors can help restore the voluntariness of pleas.

“[T]he system began as principled compromise, hardened into contract, and had devolved into disaster. . . . [T]he parties are not equal in bargaining positions when coercive power is possible and, lately, probable. This is a system in which confessions are obtained under conditions in which evidence is not publicly aired or tested, and in which penalties get worse the more the defendant tries to challenge the evidence[.]”