Week Eight, Law and Society

Assignments for Week 8:

I.  Read Chapter 7 in your Samaha textbook and Lecture 7 below for this week's quiz. 

II.  Cases in class this week:

            Chapter 7, State v. Ulvinen

            Chapter 7, State v. Chism

            Chapter 7, State v. Akers

            Chapter 7, State v. Zeta Chi Fraternity

Lecture 7, Plea Bargaining


1.  With some variation among jurisdictions, defendants plead guilty in 85 to 90 percent of criminal cases and therefore do not go to trial.  Guilty pleas have predominated in our system for a century or more, and most are the product of plea agreements.  In a civil suit, the judge encourages the parties to negotiate a settlement.  In contrast, negotiation (or plea-bargaining) in the criminal process is highly controversial. 

History of Plea Bargaining

1.  Some experts believe the system would fail if all cases had to go to trial.  It is believed that plea bargaining originated in response to rising caseload pressure, but the issue is more complex than that.  

2.  When the United States adopted its trial-centered adversarial system of justice, the political, social, and demographic features of this country were very different than they are today.  In 1776, the United States was still primarily a rural agrarian society.  One significant change during the 19th century was the creation of municipal police departments.  Because of industrialization, the populations of cities grew rapidly, and cities established police departments, which permanently changed the criminal court process.  The police took a more proactive role in detecting and investigating crimes and initiating court action against suspects, bringing greater numbers of suspects to the courts for processing. 

3.  Another important change was the shift to imprisonment instead of physical punishment.  Unlike physical punishment, which requires fewer resources to deliver, prison space is limited and expensive.  Plea-bargaining appeared at the same time that courts needed to alleviate the problems posed by the growing number of cases fed into the courts by police and limited space available in prisons.   

The Plea Bargaining Process

1.  All plea agreements have in common that an official in the criminal justice system extends some measure of lenience to the defendant, and in exchange, the defendant pleads guilty to the crime.  Plea agreements may be individual and explicit negotiation between the prosecution and defense.  In other cases, no negotiation occurs at all; concessions are made through an implicit agreement based on past practice or local norms.  The defense knows from past practice the defendants who plead guilty receive a more lenient sentence.  Although plea agreements by definition involve lenience in exchange for a guilty plea, the prosecutor may seek additional concessions from the defendant, such as testifying against co-defendants or cooperating with ongoing investigations. 

2.  Concessions may be granted by the prosecutor in the form of fewer charges, less severe charges, or some particular sentence recommendation to the judge, or in agreements to make no recommendation regarding the sentence.  When the judge grants concessions, the lenience usually relates to the sentence, although it may involve dismissals or acquittals on multiple charges.

3.  Sometimes the defendant is represented by counsel in negotiations, and sometimes the defendant negotiates directly with the prosecutor or the judge.  Explicit negotiations may occur early in the process, before initial charging by the prosecutor, or late, even after the trial has started and the jury has begun to deliberate.  The plea discussions may take place as part of a pre-arraignment or pretrial conference that is routinely scheduled for each case in anticipation of a negotiated plea.  Alternatively, plea discussions may occur almost in passing, during the chance encounter in a courtroom.  Both petty and serious crimes can be resolved through a plea agreement.     

Styles of Negotiation

1.  Plea-bargaining suggests an image of bargaining between the prosecutor and defense counsel.  Far more common is the practice of routinely granting standardized lenience to defendants willing to plead guilty, without explicit discussion.  Standardized lenience is commonly shown to defendants who had very little bargaining advantage and who adopted a reasonable, or even remorseful, posture.  Many times these cases would be very easy for the prosecutor to prove in court; to avoid the trouble of the trial, the prosecutor offers a standard reduction.  Standardized lenience reflects the "going rate" for routine cases. 

2.  A consensus develops among the decision makers in the criminal court process of a suitable punishment for the typical case.  Normal crimes are those that roughly fit the profile of the typical retail theft, an ordinary burglary, or standard domestic assault, and so on.  What prosecutors, defense lawyers, and judges mean when they talk about normal crimes is that the main features of the crime, relating to the victim-offender relationship, the amount of force used, the motive, the context in which the crime occurred, and other factors, are pretty much like most other crimes of the same type.

3.  Normal crimes have a going rate.  The going rate of lenience might be a standard charge reduction; for example, first-degree burglary might routinely be reduced to receiving stolen property, provided the defendant pleads guilty.  Alternatively, the prosecutor may offer a standard sentence recommendation.  Because defendants are more willing to plead guilty to minor crimes, implicit bargaining is especially common in the lower courts and in misdemeanor processing.  Although implicit bargaining occurs in felony cases as well (normal burglary, normal assault, and so on), as the stakes increase, the defendant may seek more explicit promises of lenience from the prosecutor.

Judicial Participation in Plea-bargaining

1.  The judge is intended to be a symbol of neutral and detached justice.  The judge has a duty to protect the public interest, including ensuring fairness in the administration of justice.  More specifically, judges  examine the facts to determine whether the guilty plea has a factual basis and with examining the defendant to establish that the plea was made knowingly, intelligently, and voluntarily.  Whether judges can fulfill these duties while participating in plea negotiations is a matter of controversy.

2.  The extent to which judges actively participate in the give-and-take of plea-bargaining varies greatly among jurisdictions.  Only the judge is empowered to determine the punishment; defendant’s uncertainty about the sentence is reduced if they can negotiate directly with the judge or get the judge to agree to a specific sentence in exchange for a guilty plea.  Many states forbid judges to actively engage in plea negotiations.  The federal rule does not allow judges to "participate" in plea discussions in order to maintain the appearance of judicial neutrality.  Once the judge becomes involved in securing a guilty plea instead of remaining detached, the balance of power between the two adversaries changes.  First-hand detailed knowledge of failed plea negotiations is likely to destroy the impartiality of the judge as fact-finder if the case proceeds to trial.  When the judge participates in plea-bargaining, defendants may sense that the judge will hold it against them if they refuse to plead, especially if the judge is encouraging an agreement. 


1.  Because most judges adopt a reactive posture with respect to plea-bargaining, the prosecutor is usually the only representative for the state in explicit plea negotiations.  Prosecutors may negotiate the severity and number of charges, called charge bargaining.  In addition, the prosecutor can offer to make a specific sentence recommendation or no recommendation at all.  This practice, although dependent on the judges passive cooperation, is called sentence bargaining.

2.  The prosecutor can engage in charge bargaining without having to rely on the cooperation of the judge to ratify the agreement.  The charging decision rests solely with the prosecutor.  If the judge believes the prosecutor has been too lenient in a charging decision, she or he can do little about it beyond attempting to persuade the prosecutor to reconsider.

3.  Where a jurisdiction has created mandatory sentencing provisions, the prosecutor's charging decision is indistinguishable from the sentencing decision.  In these cases, the prosecutor’s willingness to drop a charge that carries a mandatory sentence is a substantial concession and one that evades the original intent of the mandatory sentence.  In general, the less discretion that judges have in sentencing under the sentencing laws of the jurisdiction, the greater the prosecutor’s control over the sentence a defendant actually receives.  Although judges normally cooperate in the process, the judges are free to reject the prosecutor’s recommendation in any case at anytime.

Limits on Prosecutorial Discretion

1.  The prosecutor does not possess total discretion in negotiating plea agreements.  The duty of the judge to examine the voluntariness of the plea and its factual basis helps to keep negotiations within reasonable bounds.  One practical restraint is the participation of defense counsel.  Experienced, skilled defense attorneys are in a position to advise clients about the real value of apparent concessions by the prosecutor.  An experienced attorney is unlikely to be taken in by a hollow promise or threat of charges that cannot be proved.

2.  A second constraint is the defendant’s right of discovery and the prosecutorial practice of disclosure.  Once the prosecutor discloses the state’s evidence to the defense, the defense can realistically assess the strength of the case.  Disclosure reduces uncertainty about the likelihood of conviction at trial.  Without disclosure, prosecutors could bluff defendants into pleading guilty to higher charges.

3.  Ethical standards also restrain prosecutors.  The American Bar Association's Standards Relating to Pleas stress that "similarly situated defendants should be afforded equal plea agreement opportunities."  Where the admonition is taken seriously, attempts to minimize disparity in plea agreements serve to establish standards, or going rates, which keep negotiations fair. 

4.  Although there are constitutional limits on plea-bargaining, the limits do not prevent prosecutors from driving hard bargains, even to the point of threatening severe punishment if the defendant refuses to plead guilty. 

Defense Counsel and Defendant

1.  Some defendants go through the court process without benefit of counsel, and in most states prosecutors are free to enter into plea agreements with unrepresented defendants who then navigate plea negotiations at their own risk.  Defendants cannot evaluate the legal and evidentiary strengths and weaknesses of their own cases.  In addition, a defendant may be impressed with the prosecutor’s offer to drop a charge, when the normal concession or going rate includes the dropped charge and recommendation of probation. 

Functions of Plea Bargaining

1. One function of plea bargaining is that rehabilitation can be encouraged by tailoring tailoring individual sentences to individual needs.  Also, the guilty plea is the first step a criminal must take to recognize his or her responsibility for criminal actions and his or her need for reform.  Plea bargaining enables the state to encourage revelations concerning the criminal acts of other persons in return for leniency, thereby exposing a greater range of unlawful activities.  Additionally, plea bargaining offers an opportunity for defendants to participate in the disposition of their own cases, encouraging them to take control of their own lives.  Lastly, Plea bargaining avoids strict application of laws which may create unwarranted personal hardships and social unease.

© Karen Donahue 2017