The Case Against Plea Bargaining

In this article, the author argues for the abolition of plea bargaining altogether due to its unconstitutional nature. In addressing the decreasing rate of adversarial trials and increase in plea deals, the landmark Supreme Court decision Bordenkircher v. Hayes is discussed. In Hayes, a prosecutor admitted to filing a new indictment against a defendant to deter the defendant from exercising his right to a jury trial. The Supreme Court approved the prosecutor’s handling of the case. The article goes on to explain why the Supreme Court’s decision in Hayes was wrong given that, from the author’s perspective, plea bargaining as a whole is unconstitutional. Supreme Court precedent from outside of the criminal law context and constitutional history is used to support this position.

“Plea bargaining rests on the constitutional fiction that our government does not retaliate against individuals who wish to exercise their right to trial by jury.” p. 26