The Plea Bargain: A Bandaid over a Bullet Hole

Image courtesy of Canterbury Law Group.

The constitutional right to a trial by jury is an intrinsic aspect of our judicial system that is rarely called into question. Yet, there are jurisdictions where over 90% of cases never actually carry out what we presuppose to be a central aspect of the United States justice system. Instead, those awaiting trial are sent to underrepresented “door number two:” the plea deal. 

If the plea deal  has such an impact on how sentences are doled out, why is it so unacknowledged? Given the injustices of our legal system, including (but not limited to) racial and socioeconomic imbalances in access to equitable representation, the plea bargain tends to do more harm than good.  Addressing the plea bargain will not fix all of the problems with the justice system and incarceration. Still, we should acknowledge how it bars access to a fair trial, which consequently inhibits systemic change, while pretending to be a way to avoid lengthy and costly trials. 

Implications of the Plea Bargain

In many ways, the plea bargain seems to be unrepresentative of the original basis of the justice system, by providing a loophole around the Sixth Amendment’s requirement for trial by impartial jury. People can end up being sentenced for a crime they did not commit via the plea bargain. However the phenomenon of sentencing innocent people is not unique to problems caused by the plea bargain. Unfair sentencing is unfortunately a salient part of our incredibly fallible justice system. It is also important to note that this system was not equal prior to the plea bargain. Bias will always be implicit in juries, and economic status will always disproportionately impact the verdict of a defendant, because wealthier defendants can afford personalized lawyers with resources to draw out the trial or fight for a better plea bargain. The plea bargain does offer a simpler way out, but who is it a way out for? 

Plea deals increased as a result of changes to the justice system that were supposed to benefit defendants, especially defendants in marginalized communities, and yet the prosecution and wealthy lawyers are the ones predominantly benefitting. Sometimes, the prosecution knows they do not have a strong case against the defendant-- but it is still their job, to represent the state. They can increase or exaggerate the potential charges of a defendant in order to convince them to take a plea deal, and someone who knows very little about the American justice system, such as those without an education, an adult to advise them, a language/culture barrier, etc., may be easily scared into compliance. There is even a lesser known plea bargain option called the Alford plea, in which the defendant can plead guilty while publicly maintaining innocence. While typically only used as part of a negotiated plea agreement between the lawyer and the prosecution, its existence says a lot about the plea bargain. How can we believe that the plea bargain is equivalent to trial standards if a client is allowed to maintain innocence, but plead guilty? We can’t-- all too frequently, it isn’t about speeding up the process for the sake of the defendant, but for clearing the prosecution's schedule, about anything but the actual provision of justice.

It is easy to assume that an individual’s lawyer has the ability to navigate the plea deal and figure out what is truly their client’s best option. However, many rely on public defenders, who have less time, less resources, and frequently, less experience. They can be easily manipulated by a prosecutor looking to avoid the lengthy, expensive trial process. Law enforcement and defense attorneys are also major benefactors of the plea bargain-- they do not need to put the same kind of effort into properly investigating and preparing cases. For a defendant who cannot afford legal fees, the options are poor; entering into debt for an adequate lawyer, settling on a public defender-- only to be possibly convicted anyway. It may seem easier to simply take the plea bargain-- but then sentencing becomes for sale.  

Law enforcement, defense attorneys, prosecution, can monopolize who goes to trial and who takes a plea bargain. Experienced prosecution can manipulate new public defenders, and experienced attorneys have friends and allies in the prosecution's office. While that experience can benefit potential clients, lawyers also have the power to look out for themselves, convincing a client to receive a plea bargain to save themselves effort or money. 

But at what cost? A defendant loses their chance at a trial by a jury of their peers, and possible exoneration. The problems in the justice system are not alleviated by the plea bargain; if anything, they exacerbate them. Since many marginalized individuals and communities must depend on overworked public defenders, the overuse of the plea bargain prevents them from receiving a proper trial. It also increases the likelihood of a potential “trial penalty,” where going to trial and pleading not guilty actually results in a much harsher conviction, because of less efficient legal representation. 

Two tracks of “justice” thus exist; that of the wealthy, who can afford to go to trial with adequate legal representation, or use their wealth to hire lawyers with connections in the prosecution’s office, to come out with a plea bargain that makes everyone happy. Then, there are the poor and marginalized individuals, who can’t afford privatized legal representation, and must rely on public defenders who can’t devote the same amount of time to plea bargain negotiations, nor can those individuals always afford to go to trial at all. They can be pressured into waiving their right to a trial, which hides the more concerning truth; because of socioeconomic status, they likely would not have received a fair trial in the first place. Meanwhile, the real victors of the plea bargain; prosecutors and defense attorneys, can continue to hide under the guise that a plea bargain offer is an act of altruism, somehow hiding behind the systemic flaws in our legal system. 

How Did We Get Here? 

In an ideal world, all defense attorneys would have the same amount of time, money, and skill, to negotiate a fair and beneficial plea bargain with the prosecution, removing the emotional pressure, time, and financial burden of a trial. However, this is not the case; public defenders are especially overworked and underpaid, especially compared to lawyers with their own practice, or those held on retainer for wealthier individuals. So, a plea bargain serves as a compromise with the prosecution, in which a defendant consents to pleading guilty for a crime they may or may not have actually committed, in order to gain a more favorable outcome than they otherwise might have gotten, while surrendering their right to a jury of their peers. 

Prior to the 18th century, most trials were decided by judges and juries, without an attorney for the defendant present. As a result, trials were much faster and the plea bargain was not necessary– but trial proceedings were also even less reliable, as people lacked representation. However, this began to change, pivotally with the case of Gideon v. Wainwright in 1960. In that case, the Supreme Court ruled that impoverished defendants have the right to legal counsel, so both the state and the defendant needed representation. 

However, the legal representation requirement made trials lengthier, and trial costs higher. Consequently, justice became a purchasable good: the more money, the better the lawyer, the more time to litigate the trial. Plea bargains were a way of filtering through trials, both for especially wealthy defendants with experienced lawyers that could talk the prosecution into a relaxed plea-- and inexperienced and/or overburdened public defenders for poorer clients who didn’t have the time or money to carry out a lengthy trial.  The increased prevalence of the plea bargain was an attempt to improve representation and equality in the justice system through legal representation; they would escape the financial burdens of paying for a lawyer to go to trial, as well as the potential monetary stratification of adequate legal representation; public defenders do not receive the funding or the time to always do a trial justice. However, the plea bargain actually just adds another layer of injustice. Instead of dealing with the problem of unequal legal representation based on wealth, in order to increase the amount of fair trials, poorer clients can end up with plea deals for trials they should have been able to win.     

Guilty verdicts have also become harder to procure, so prosecution is more motivated to offer defendants plea bargains, in order to save themselves from losing a trial. Required Mirandization, which is the requirement to recite the Miranda rights to individuals under arrest (the right to remain silent, anything said can be held against you in a court of law, you have the right to an attorney, court appointed or otherwise) of individuals under arrest made self-incrimination less likely. Additionally, the requirement of some form of legal defense specifically means that both innocent and guilty people do not incriminate themselves as often so building a case against defendants becomes harder. As a result, the prosecution has more to gain by getting a defendant to take a plea, so they don’t have to lose money by dropping the charges. A case that might otherwise be further investigated and easily thrown out can be avoided by an inexperienced or underfunded lawyer and an unaware defendant. 

Additionally, the plea bargain is an alternative to a trauma victim testifying, putting them at risk of retriggering their trauma. Many of these victims just want to go forward with their lives as best they can. These benefits are significant, and should not be undermined. But both of them can be addressed with more widespread reform, like programs such as the Brennan Center for Justice that try to end federal incarceration for lower level crimes, and into  that lessen mass incarceration in the first place, and Girl’s Court, which especially supports girls in long-term foster care to receive education and emotional regulation through therapy, instead of criminal trials with the potential for jail time.  More effort needs to be put into addressing problems like the ones these do; systemic issues that a short term solution like the plea bargain can’t fix. These are systemic issues that a short term solution like the plea bargain can’t fix. 

Contemporary Cases 

There are a myriad of contemporary examples in which the plea bargain was abused and did more harm than good to underrepresented communities. One example is the 2019 case of high school junior Brian Banks, charged of the rape and kidnap of a female classmate Wanetta Gibson. His family could not afford to pay bail, so Brian remained in a juvenile detention center for a year, looking at a potentially 41- year conviction. His lawyer encouraged him to take a plea deal as jury selection began, particularly a “nolo contendere” or no contest to charges. In this plea, similar to the Alford plea, the defendant does not admit to the crime, but also chooses not to contest the charges. 

However, what was most striking about this case was Brian’s lawyer’s description of his alternative: he would likely be tried in front of an all white jury, and convicted on his size and race. He took the deal, and ended up spending five years in jail, and five years on parole, as well as being forced to register as a sex offender. 10 years later, Wanetta admitted that Brian had not raped her, and his sentence was over turned-- far too late. 

Of course, trials like this aren’t rare. Too frequently, minorities have to fear our justice system. His attorney argued the plea bargain as a way of escaping the problems of systemic racism, but that just enforces those problems. The plea bargain isn’t the bottom up reform the justice system really needs-- it just helps prop up the problems. Instead of dealing with the problem that Brian would likely receive an unfair trial because of his race, his lawyer and the prosecution had the option to offer the plea bargain-- ultimately  playing into the racism of the justice system. 

There are also cases in which underprivileged communities would actually be better off taking the plea bargain-- even if they were actually innocent. This just emphasizes the ways in which the plea bargain is a band-aid over a bullet hole—it doesn’t address the real problems. One example is the Central Park Five 1996 case, over the rape and assault of a woman in Central Park. Kevin Richardson, Antron McCray, Raymond Santana, Korey Wise, and Yusef Salaam were all convicted and received various sentences of six to twelve years, although all of their charges were eventually dropped. 

There were major problems regarding racism, classism, and abuse of the criminal justice system, prior to anything regarding the plea bargain. The majority of them were minors, taken into custody and undergoing hours of coercive, unrecorded, unrepresented interrogation that was later used to convict. There was no DNA or substantive evidence that connected the teens to the scene of the crime, and yet they were charged on those manipulated confessions. They finished their sentences before they were exonerated-- sentences that would have actually been shorter, if they had taken the plea deal. But the problem here isn’t that they weren’t convinced to take a plea deal-- that is a surface level criticism of a much larger problem regarding the racist, classist conviction of these five teenage boys. 

Next Steps 

There are short term and long term ways of addressing the plea bargain-- it isn’t as simple as just abolition. Improving defendant awareness of their rights is one way, through questions and a transparent explanation of the potential outcomes in a trial by the judge, instead of the prosecution or an attorney. However, long term, there are just too many defendants taking plea deals because they don’t actually believe they have a shot at a fair trial-- and that’s a more significant issue. An inability to finance a wealthy lawyer, a biased jury, and the many other disproportionate qualities of the justice system, should not force people to take a plea deal. 

The country needs to reshape the priorities of the justice system-- towards rehabilitation, instead of punishment. When individual and community circumstances are properly acknowledged, “jail time” can stop being such a default, and a bottom up look at what causes a person to commit a crime, and what we consider to be a crime, can be implemented. Plea bargains should stop being the default for such a vast majority of the population.  The removal of the plea bargain system, could one day leave us with a system that all people could truly rely on. 

Sarah Doyle is a staff writer for CPR and a third year at Barnard, studying English and History with an intent to attend law school.