Plea bargaining is the process by which a criminal defendant charged with a crime, or
multiple crimes, agrees to waive his or her constitutional right to a jury trial.
A criminal defendant is given an opportunity to plead guilty to a lesser charge in exchange
for the prosecutor not bringing the higher charge.
So a person who is charged perhaps with murder might plead down to a manslaughter charge
instead.
In exchange for that, the prosecutor chooses not to hold a full trial.
The public has this image of jury trials as making up the bulk of our criminal adjudications
based on what they see on TV and in movies, and that is a vanishingly small part of our
criminal justice system.
This is a relatively recent process.
Uh, this was absolutely unknown at the time of the founding.
The Constitution makes no mention of plea bargaining whatsoever.
The presumption, both historically and in the text of our Constitution, is that all
criminal trials will be by juries.
In the early period of American history, the right to a jury trial was not really considered
as belonging to the criminal defendant.
Essentially, it was a right that the public enjoyed, not the defendant, and as a result,
criminal defendants were held to be not allowed to waive their right to a jury trial.
That began to change in about the 1870s.
It primarily arose because the criminal justice system simply was unable to process all of
the criminal charges that the government was bringing through the relatively more extensive,
time-consuming process of the jury trial.
Today, plea bargaining rather than the jury trial makes up the bulk of our criminal justice
system.
Ninety-seven percent of all federal convictions today are obtained through plea bargaining,
not through jury trials.
The principle behind plea bargaining then is that the right to a trial belongs to the
criminal defendant, just like a piece of property does, and that, in essence, the defendant
can sell the jury trial right to the prosecutor in exchange for a lower charge.
I think where we are today is that this really can't be called a voluntary process because
you have, uh, criminal defendants who are being threatened with 20, 30, 40 years in
prison.
Uh, who would possibly risk that when you could walk away with two years in prison?
One of the benefits to the plea bargaining system to the criminal defendant is that it
allows the criminal defendant to get on with their life by accepting guilt for a lower
offense without having to go through the complicated, expensive, and time-consuming process, and
humiliating process of a trial in front of a jury.
If a criminal defendant is willing to give up that right in exchange for a lower sentence
then society should be okay with that.
That also saves taxpayers money and relieves the system of a burden that might otherwise
make it difficult to keep the society safe.
It allows prosecutors to concentrate their efforts on high-level offenders and bring
those to trial without having to bring every case to trial that involves a relatively minor
offense.
There's a separate set of issues, in terms of how you encourage certain defendants to
testify against others and, in principle, you can certainly appreciate, you know, the
goal of wanting to encourage certain members of a criminal organization to give honest
testimony against others, but in practice what you see happening is the prosecutor essentially
coercing defendants into giving testimony that the prosecutors want, whether it's true
or not.
On the whole, the Supreme Court has been perfectly willing to bless plea bargains.
And you can understand why it's, it's a difficult concept for the court to address because exactly
where the line is between coercive and voluntary pleas is a difficult question in principle.