Plea Bargaining

This article provides a general overview of the legal history of plea bargaining. The author then explores some of the critiques of plea bargaining, including the risk of coercion, the risk of inaccuracy, and the lack of adequate procedural safeguards for defendants. After providing some general options for plea bargaining reform, the author presents specific recommendations aimed at increasing the occurrence of just and accurate outcomes during the plea bargaining process. Those specific recommendations include requiring written plea agreements which must be entered into the record, prohibiting the waiver of critical procedural rights, providing defendants with broad pre-plea discovery,  stronger judicial oversight, and limiting plea discounts.

“Apart from its potential to coerce innocent defendants to plead guilty, the current practice of plea bargaining in the U.S. is criticized for conflicting with the search for truth. Even if defendants are guilty of some offense, incomplete investigations, inadequate disclosure, limited adversarial testing, perfunctory judicial oversight, and sizable plea discounts can lead defendants to plead guilty to crimes different from the ones they committed. Some of the same factors can also produce sentences that are disproportionately lenient or disproportionately harsh. They also allow the negotiation of plea bargains that vary based on arbitrary factors such as race, ‘wealth, sex, age, education, intelligence, and confidence.'” p. 3