Is Plea Bargaining a Cop-Out?

Time Magazine, 28 August 1978

Critics say yes, but efforts to ban it bring mixed results

Ideally anyone charged with a crime in the U.S. is entitled to his day in court. The litany of rights is familiar: the state must prove guilt beyond a reasonable doubt, the accused has the right to be tried by a jury of his peers, and an impartial judge must carefully weigh the facts before handing down a sentence.

 

The reality, as anyone involved with criminal justice can attest to, is far different. In the vast majority of cases, the accused has no trial. His “day” in court is the few minutes it takes him to plead guilty. “Here we have an elaborate jury trial system, and only 10% of the accused get to use it,” says Colorado Law School Professor Albert H. Alschuler. “That’s like solving America’s transportation problems by giving | 10% Cadillacs and making the rest go barefoot.” For most defendants, justice is done by way of a deal: a guilty plea in exchange for the promise of reduced charges or a lighter sentence. Bargains are generally struck with the prosecutor; the judge usually rubber-stamps them.

 

Plea bargaining is as widely criticized as it is prevalent. Defendants claim they are railroaded into abandoning their right to a fair trial by zealous prosecutors who “overcharge” them and then agree to reduce the charge in exchange for a guilty plea. The public, on the other hand, complains that criminal defendants get off too lightly. In plea bargaining, armed robbery often becomes unarmed robbery (this is known as “swallowing the gun”), and burglaries by night miraculously become the lesser crime of burglary by day.

 

Many lawyers and prosecutors defend plea bargaining as “flexible,” claiming that bargaining can shape the sentence to the individual defendant. What is more, says Maricopa County (Ariz.) Attorney Charles Hyder, it is “the greatest weapon a prosecutor has. The prosecutor is in the driver’s seat. Usually the defendant is not aware of any weaknesses in a case.”

 

The strongest argument for deal making, however, is sheer necessity. Approved of by Congress and the President’s Commission on Law Enforcement and Administration of Justice, plea bargaining has been condoned by the U.S. Supreme Court as “essential.” It is widely accepted that without deals between the prosecutor and the accused, time-consuming trials would cause many courts to choke on overcrowded dockets. Chief Justice Warren Burger has said that even a 10% reduction in plea bargaining would double the number of trials.

 

Increasingly, however, the justification for plea bargaining as a necessary evil is being questioned. Most observers agree that certain overburdened urban jurisdictions would grind to a halt without it. But in two fair-sized cities, Portland, Ore., and New Orleans, district attorneys claim that they have been able to get stiffer sentences without backlogging the court docket by cutting down on plea bargaining. According to New Orleans District Attorney Harry Connick, when he limited plea bargaining, the city’s criminal court judges complained that “they would have to spend a lot of time on the bench trying cases. My feeling was that they were getting paid full-time salaries, and they could damn well work full time.”

In scattered jurisdictions around the country, other prosecutors and judges have also tried to reduce deal making. Results are mixed; Boulder, Colo., for instance, reports trouble keeping up with its docket without tradeoffs. And some doubt that district attorneys who grandly announce plea-bargain bans really enforce them. Still, it is difficult to understand why some jurisdictions manage to hold down plea bargaining, while others with comparable case loads bargain almost every time. Critics like Harvard Law School Professor Alan Dershowitz argue that bargaining is often born not of necessity but of “laziness”—or of judges competing for the cleanest docket, prosecutors aiming for high conviction rates or defense lawyers who find it more profitable to make quick deals than go through long trials.

 

The most thoroughgoing—and thoroughly studied—ban on plea bargaining went into effect in Alaska in August 1975. A computer study released by the Alaska Judicial Council this summer found that in its first year, the ban was widely heeded by prosecutors. The result: longer sentences, as some hoped for, but no backlogs in criminal cases, as had been feared. In fact, such cases were disposed of faster after the ban went into effect (although, at the same time, a backlog began to develop in civil cases).

 

How did Alaska keep its courts from being swamped by criminal trials without the supposedly essential practice of plea bargaining? Unlike urban courts already streamlined to cope with heavy case loads, Alaska courts had sufficient slack to absorb more trials. Efficiency techniques instituted 16 months before the ban continued to whittle down court delay. More careful screening out of weak cases also helped. But the main reason Alaska’s courts could keep up is that defendants continued to plead guilty in droves. The percentage of accused choosing to exercise their right to trial increased only from 6.7% to 9.6%. Why? “Because defendants know they have nothing to gain by going to trial,” says Stevens Clarke, a University of North Carolina professor of public law and government who monitored the study. Making a judge sit through several days of trial, especially if the defendant has perjured himself, can only bring down a harsher sentence than if the defendant had just pleaded guilty to begin with. “To me, that’s still plea bargaining,” says Colorado’s Alschuler. “That’s the loophole in the Alaska ban.”

 

Another problem concerns the length of sentences. Alaska Attorney General Avrum Gross says his decision to abolish plea bargaining was strongly influenced by a 1975 case in which a “violent killer” plea-bargained a murder charge into manslaughter and was promptly released, since he had already served 18 months while awaiting trial. Instead of violent criminals getting tougher sentences under the ban, only drug offenders and people accused of minor property crimes ended up going to jail, more frequently or for longer terms. “The ones who really got socked were the low-risk offenders,” says Clarke, “the ones with no prior record or whose crimes were not aggravated.”

In short, acknowledged Clarke, the Alaska ban did not change the status quo all that much, and the merits of what it did change are open to debate. But the Alaska experience does underscore a blunt reality of criminal justice. As Chicago Law School Dean Norval Morris puts it, “Most defendants plead guilty because they are guilty.” And if that is so, say Morris and others, perhaps the real question is not so much whether plea bargaining deprives the accused of his right to a jury trial, but whether he gets a fair and rational sentence.

Presumably, judges should decide sentences. “After all, they are the impartial figures in the System,” says Yale Law School Professor Abraham Goldstein. But in plea bargaining it is generally the prosecutor and not the judge who in effect decides whether and for how long a defendant is going to jail. Indeed, American Bar Association standards forbid judges to participate in bargaining, because the defendant would feel coerced to accept the judge’s recommendation. Whether judges do participate varies from jurisdiction to jurisdiction. Often, says Alschuler, they do it implicitly, with veiled threats, cajolery, hints, nods and winks.

 

Reformers like Alschuler and Morris think that judges should be involved in plea bargaining. Rather than prosecutors making deals based on a “rap sheet” and an arrest report, negotiations should be done out in the open, with the defendant present and with more thorough pre-sentence investigation. Others question whether judges are any less arbitrary than prosecutors and look to mandatory sentences fixed by legislatures as the answer.

 

No matter who decides sentencing, says Richard Kuh, former New York County D.A., the focus of plea bargaining should not be on “spinning the revolving doors of the courthouse.” It should be on “the defendant’s rehabilitation or the public’s protection.” Says Chicago Law School Professor Franklin Zimring: “Because of plea bargaining, I guess we can say, ‘Gee, the trains run on time.’ But do we like where they’re going?”