Plea Bargaining Research Paper

1. The Typology Of Plea Bargaining

While scholars have concluded that plea bargaining was common in nineteenth century British courts (Zander 1998, pp. 323–34), most comprehensive studies have focused on the USA, and most have been conducted in the past 25 years. (For a summary of the early work on plea bargaining, as well as an agenda for future plea bargaining research at the time, see Law and Society Review 13 (2), 1979; for useful citations on subsequent related work see McCoy 1993, Vogel 1999.) In the early days, there was a debunking tone to this work, as scholars questioned and tested the assumption that trial courts ‘try’ cases. What was viewed as anomalous in an earlier period of US history—something which might have characterized the more political (and frequently ‘sleazy’) municipal courts—plea bargaining is now understood to be the central method of processing cases in trial courts. Plea bargaining was not an aberration of US courts; it was the norm. In what might be viewed as the epitaph for the role of trials in trial courts, a judge noted: ‘I don’t think that a trial necessarily represents a failure in the plea bargaining system. I really believe that the trial is a necessary adjunct of the system’ (Heumann 1977, p. 150).

While most scholarly attention has been focused on plea bargaining in the USA, recent comparative endeavors have produced data that afford us the opportunity to understand plea bargaining as it exists (in many forms) around the world. While no two nations’ legal systems or plea bargaining experiences are exactly alike, we are at the point where we can begin to construct typologies (explicit, policy, and implicit plea bargaining) that can and should invite future research. Notably, while different forms of plea bargaining will continue to exist, there is a kind of convergence at work, as the institutions, attitudes, and processes of nations around the world begin to resemble each other when it comes to the actual practice of plea bargaining.

1.1 Explicit Plea Bargaining

Plea bargaining in the USA in its most basic and commonly understood form, is the process of active, explicit negotiation between the defense attorney and prosecutor concerning the resolution of the defendant’s case. Most frequently the ‘deal’ revolves around the benefits that will flow to the defendant if he or she chooses to plead guilty. These might include a reduction in a charge, a dismissal of a charge or charges, or a prosecutorial sentence recommendation (or an agreement for the prosecutor not to press a particular sentence). Also, increasingly, the prosecutor might agree not to add a mandatory sentence charge to the defendant’s indictment. Any, or many, of these will be given to the defendant in return for a guilty plea. Generally the exchange is explicitly negotiated, and a judge may or may not also be part of the negotiating process. When not involved, the judge usually goes along with the negotiations; however, if it is felt that the agreement is not acceptable to the judge, the defendant is usually allowed to withdraw the plea.

This form of plea bargaining, as indicated above, is one in which a negotiation is undertaken explicitly and the parameters of the agreement are agreed upon specifically. While the USA (especially since the late 1960s following the US Supreme Court’s approval of plea bargaining) represents the best example of a system that embraces explicit plea bargaining (indeed, the explicit variety is the one that is conjured up when comparisons with the USA are made), other nations which have experienced increases in case pressure have sought relief through increases in explicit plea bargaining. While it has been proven that this relationship is not a causal one in American courts (Heumann 1977), we can see a correlative relationship in systems such as South Africa’s, for example, which is considering the expansion of the realm of explicit bargaining (and inviting judges into the process) as a response to its increasingly overwhelmed courts (Schwikkard, and van der Merve 1999, p. 352). It is important to note that plea bargaining (involving prosecutors and defendants) was already common in South Africa, and thus was not caused by a case overload; what we are seeing now, in other words, is a development of earlier practice. Other examples of nations that employ more explicit practices include Israel, which allows on-the-record plea bargaining (Harnon and Stein 1999, pp. 239–41), and Canada, which openly encourages pleas with regard to charge and sentence (Roach 1999, p. 75).

1.2 ‘Policy’ Plea Bargaining

A second kind of plea bargaining, neither explicit nor implicit per se, is derived from, and relies upon, the policies a prosecutor’s office may have adopted over time. Specifically, the prosecutor may announce that his her office will not negotiate in specific types of cases (e.g., when a firearm is involved, or certain drug matters). But the prosecutor, without explicit negotiation will, as a matter of policy, substitute some lower charge for defendants who plead guilty to a ‘policy case.’ Thus defendants (or defense attorneys) can be reasonably certain about the benefits that will attach to a plea of guilty. This form of plea bargaining seems to be unique to the USA—a product, seemingly, of the mandatory sentencing guidelines that have stripped some courtroom actors increasingly of the discretion necessary to make explicit deals.

1.3 Implicit Plea Bargaining

A third kind of plea bargaining—what we might label ‘implicit plea bargaining’—takes place whenever a defendant pleads guilty, with the expectation that the plea will lead to a reward in terms of charge and/or sentence reduction. Unlike the first kind of plea bargaining there is no explicit negotiation; unlike the second type there is no specific policy reward for a plea. In this kind of plea bargaining, the defendant hopes that a plea—a gesture of cooperation or contrition— will yield a beneficial disposition of the case.

Plea bargaining in the USA generally took the ‘implicit’ form until the 1960s, and we can see that in Japan, for example, defendants will often expect a reward for their plea, especially as the national government continues its crackdown on organized crime. (For an interesting discussion of why ‘elite’ USA Federal judges preferred implicit plea bargaining, see Padgett 1990.) Implicit plea bargaining is, based on data we have on other countries, the most common form in the world, but it is also the most difficult to study.

Many nations deny that plea bargaining takes place, and some (the UK, for example) even make plea bargaining illegal. In the early 1970s, several official arms of the government actually tried to stop the publication of a social science study based on defendant interviews, a study which claimed that extensive coercive plea bargaining characterized the British system (Baldwin and McConville 1977). And though a subsequent study qualified the contention about the coerciveness of the process, it still maintained that a variant of what can fairly be called plea bargaining thrived in the UK (Seifer 1980, pp. 179–97).

Japan also takes a more negative attitude toward plea bargaining, declaring it to be ‘illegal’ (Johnson 2001, p. 2). Thus if one were to believe the ‘law on the books,’ one would have to conclude that Japan stands as a clear exception to the argument that plea bargaining is both central to criminal justice systems and quite common as a practice. Yet in one of the few empirical studies of Japanese law in action, Johnson demonstrates that, despite the formal law to the contrary, several modes of plea bargaining are common in the Japanese criminal justice system. An aversion to the ‘crassness’ of the American form of plea bargaining, coupled with the purported illegality of this activity, may lead to denials of plea bargaining’s existence. But these denials are simply wrong—plea bargaining, in various forms, is alive and well in Japanese courts.

We can see this version of plea bargaining at work in some cases in Japan, and in Argentina and Italy (Sanders 1966, pp. 335–9, Carrio and Garro 1999, p. 43, Van Cleave 1999, pp. 272–4). In Japan, abbreviated—very abbreviated—‘trials’ are really uncontested presentations of evidence, which frequently are called ‘slow pleas of guilty.’ Running through these alternatives and others is something like the notion of implicit plea bargaining, the idea that not contesting a claim (inquisitorial systems typically do not admit a guilty plea) leads to an expectation of leniency in disposition. In France, to offer yet another example, defendants feel that cooperation clearly leads to sentence reductions (Frase 1999, p. 169).

One thing that tends to disguise plea bargaining in other nations (and to allow for official denials) is the existence of functional equivalents. These equivalents represent this form of negotiation in its most ‘implicit’ manner. In Germany, for example, the prosecutor can either waive cases if it seems there is no public interest in prosecuting them, or issue a ‘punitive order’ (more of an administrative than a criminal resolution of the case) when it appears that trial alternatives are not desirable. ‘The prosecutor’s offer of a conditional waiver as well as the punitive orders have been considered a German variant of plea bargaining.’ (Blankenburg 1996, pp. 284–5, see also Weigand 1999, pp. 208–9).

2. Trends In Plea Bargaining In The USA

Because plea bargaining can take place in a variety of ways—all of them by definition subtle and discrete— this manner of bargaining presents scholars with the greatest challenge; to perceive, isolate, and understand negotiations of this kind seems to require the kind of comprehensive comparative studies that have not yet been performed. The implications for defining plea bargaining in these three ways ought to be made clear. Explicit bargaining, for a long while, was viewed as illegitimate, with judges in court often concerned with demonstrating for the record that nothing had been promised in return for a plea (see, e.g., Blumberg 1967, pp. 88–94); so for much of the twentieth century, plea bargaining in the USA assumed either the ‘policy’ or ‘implicit’ form. The recognition of the centrality of explicit plea bargaining by the US Supreme Court, however, rendered this unnecessary, and enabled plea bargaining to take place more openly in the court (Brady vs. US, 397 US 742 (1970); North Carolina vs. Aflord, 400 US 25 (1970); and especially Santobello vs. New York, 404 US 257 (1971); see also Bordenkircher vs. Hayes, 434 US 357 (1978)). With the advent of mandatory sentencing guidelines, however, many jurisdictions around the country have been forced to return to the more subtle, implicit manner of bargaining—moving the USA closer to the ‘backroom’ style of bargaining that takes place around the world and exemplifying the ‘convergence’ discussed above.

Policy plea bargaining and implicit plea bargaining, on the other hand, have more subtle implications. Both allow jurisdictions—prosecutors in particular— to claim that they do not plea bargain, or that plea bargaining in a category of cases has been proscribed. The symbolic value of such claims should not be underestimated. The ‘bargaining’ image of plea negotiations makes the explicit process vulnerable to accusations of ‘bargaining with justice.’ This, one might speculate, is why so few nations have engaged in the explicit form of plea bargaining. Even the USA, as we can posit from studies of the impact of sentencing guidelines, is beginning to move back toward the policy and implicit varieties of bargaining. (To appear to be in conformity with a ‘no plea bargaining’ policy, a court system may also make increased use of bench trials. These are often very abbreviated trials in which the defendant does not contest the case meaningfully, but nonetheless has an expectation of some benefit because he/she has waived a jury trial. See, for example, Heumann and Loftin 1979, pp. 417–21.) Yet if defendants still plead with the expectation of benefit, plea bargaining, less explicit, but plea bargaining nonetheless, can continue to flourish.

Some illustrative data on guilty plea rates are instructive. Figure 1 graphs guilty pleas, bench trials, and jury trials (convictions and acquittals) for US District Courts from 1945 through 1998 (the last year for which these data were available). The pattern is quite clear—roughly 80 percent of the defendants whose cases are not dismissed plead guilty. The very limited role of full trials in US courts is evident. Comparably, if we look at some recently reported data from three typical counties in a Midwestern state, guilty pleas(again for cases not dismissed) range from a high of 97 percent to a ‘low’ of 87 percent (see Hannaford and Munsterman 1999, p. 66). One cannot help but be struck by the prevalence of guilty pleas in Federal and state courts in the USA. One would be hard pressed to find an American jurisdiction in which the guilty plea—or its functional equivalent (e.g., pro forma bench trials, or other forms of ‘slow pleas of guilty’)—does not comprise at least 70 percent of dispositions, with the usual percentage considerably higher. (Regarding these pleas in their many forms, see Mather 1979, pp. 55–6, 69–70, 78–9.)

As the 1945 data suggest, and other data demonstrate, plea bargaining is not a new phenomenon in US courts. Defendants pleading guilty for a putative reward and waiving the ‘Miranda rights’ (rights of the citizen when faced with police interrogation, such as the right to remain silent, right to legal counsel etc.) are the norm, not the exception in these courts, and this pattern has been consistent for some time (see, e.g., Heumann 1977, pp. 29–30, Padgett 1990, pp. 413–50, Zander 1998, pp. 323–4, Vogel 1999, pp. 161–246). Indeed, at least one scholar has argued that plea bargaining increased with the adversarial nature of the courts (Feeley 1997, p. 323).

Contrary to a popular belief, and indicated by its history and its prevalence in our courts at the time of writing, plea bargaining must reflect something other than a response to caseload pressure. The common belief that plea bargaining is caused by case pressure has been disproved by studies of American courts, and, based on the research we have thus far, we can speculate reasonably that it would be disproved in a comparative context as well. While we are aware that plea bargaining takes place (in some form) in the nations that have been studied, we are still unsure as to why this manner of negotiation takes different forms in different nations. That is, why is it that the UK tends to practice and to view plea bargaining in one way, while Japan proceeds in another? The results and motives are often the same—prosecutors induce (or accept) a guilty plea and deliver (or end up providing) some kind of ‘reward.’ So what is it, specifically, that distinguishes nations and their experiences in a comparative context? Would we find the answer in a study of institutions? Culture? History? We both invite and eagerly await scholarship that concentrates on these important questions.

3. Why Plea Bargaining?

To develop a rationale for plea bargaining, we must begin with the defendant’s expectations/preferences. Though data may be unclear and variable depending on circumstances, most defendants believe that in most cases ‘it pays to plead guilty’ (Brereton and Casper 1982, pp. 45–70). Defendants often believe that their plea will be rewarded in terms of charge and/or sentence reductions. Why they think the system so rewards them varies with defendants, and seems to reflect the variety of justifications for such a reward advanced by prosecutors, judges, and defense attorneys. Some feel that the system appreciates the appearance of contrition that a plea represents—a theme frequently heard in court is that ‘pleading guilty is the first step to rehabilitation.’ Others feel that they are saving the state the time and expense of a trial, while others who provide information about associated crimes and criminals believe they should earn a reward for their contribution. Indeed, some Japanese scholars urge an increase in plea bargaining in order to obtain more information from defendants about organized crime (Johnson 2001, p. 35).

Finally, defendants feel that by pleading guilty they ensure the state some certainty—a certainty they themselves, in fact, enjoy more. In this sense defendants might be characterized as, almost naturally, in ‘plea bargaining mode,’ they seem to enter the system expecting a bargain. A study of the intentions and expectations of defendants, across nations and cultures, could shed some light on the internal dynamics of criminal justice systems around the world. Is ‘bargaining mode,’ for example, a product of a ‘bargaining’ culture—or one reputed to be interested in ‘dealing’—or do defendants naturally have this inclination without state encouragement? A study that controlled for other nations’ reputations and cultures might yield answers to this question.

While defendant choices and expectations drive the system, complementary calculations by the system’s professional actors actually shape the defendants’ views. Prosecutors, as we know from studies of American courts, are influenced by saving money and time in many of their cases and (all things being equal) value defendant pleas. Also, to the prosecutor, even in the many open-and-shut cases (often known colloquially as cases which are ‘born dead’) that come through the office, there is always some uncertainty about post-trial outcomes; pleas remove any uncertainty, no matter how low the probability of acquittal (Mather 1979, pp. 41–2, 65–72. For the comparable concept of cases that are ‘born dead’ see Heumann 1977, p. 60). Without the data to predict with certainty, it seems reasonable to suggest a kind of ‘prosecutorial culture’ that might transcend national borders and even legal systems. That is, while we should be careful not to generalize too much, it seems reasonable to expect significant similarities in the attitudes (and certainly headaches) of prosecutors around the world.

Defense attorneys make similar assessments about minimizing pointless work and about ensuring certainty. Finally, judges also value the ostensible finality of pleas, and the reduction of the probability of appeal after a plea. Avoiding reversal on appeal, we know from the American experience, is one factor that is said to weigh large in the support that judges give to pleas. But does the same concern apply in other settings and legal traditions? Again, these actors (and others) are an active part of legal systems around the world. What then is the explanation for the different plea bargaining patterns we see in our initial comparative assessment?

While the above discussion outlines adequately what we know of plea bargaining up to the turn of the millennium, the standard explanations for plea bargaining ought not to obscure two very important considerations. The first we might call ‘all is not rosy in the plea bargaining world.’ The explanations we have given read as if defendants walk arm-in-arm with prosecutors, defense attorneys, and judges into the wonderful world of pleas. To some extent, many guilty defendants do take pleas, do so without coercion, and do so aware of the advantages of their choice. But all is not rosy, particularly for defendants who want to opt for trial. There is no question that in the US plea bargaining system there is generally a very strong inclination toward a plea; defendants who insist on trials are often in conflict with this clear reversal of the ‘presumption of innocence’ standard. Though we do not have good evidence for this, defendants may suffer harsher (i.e., harsher than the plea offer) dispositions upon conviction. Though these dispositions can be rationalized (there is no penalty for trial; pleas were rewarded because of the possibility that a trial might lead to an acquittal; defendant not penitent; etc.), the specter of trials being viewed as unacceptable options in a plea bargaining world is distasteful.

Second, it is important to clarify the case-pressure plea-bargaining argument. We have said that case pressure does not cause plea bargaining; both contemporary courts and those of the past with no realistically conceivable case pressure plea bargained most of their cases; crowded or uncrowded courts plea bargain for the reasons we have indicated. However, to say that plea bargaining is not caused by case pressure is not to say that case pressure may not affect plea bargaining; for many US courts, volume may be substantial and staffing less than optimal. In many courts, case pressure may affect dispositions, but we do not have a clear sense of how this might operate. Several possibilities come quickly to mind— rewards for pleas, which may exist in a ‘no pressure’ system, might become even greater; the reward for a plea may stay the same, but the ‘penalty’ for trial may be increased; the prosecutor may choose to screen out more cases through dismissals.

Case pressure, while not the cause of plea bargaining, can still affect the nature and form of the negotiation entailed, and we need more comprehensive comparative data on the effects of this pressure in other national settings. Recognizing that plea bargaining is fundamentally not a function of case pressure helps us to understand the centrality of pleas in US courts; acknowledging that case pressure can affect court disposition patterns helps us to understand why so many assume (incorrectly) that plea bargaining was adopted to manage heavy caseloads. We can speculate as to the relationship between plea bargaining and case pressure in other nations, but without data that considers the multiple variables involved, we are limited to our conjecture.

4. External Influences On Plea Bargaining: The USA As A Case Study

The single most dramatic change in American criminal court processes in recent years has been the increased use of mandatory sentences in particular, and adoption of sentencing guidelines in general. In an effort to reduce judicial discretion in sentencing, the US Congress and individual states have circumscribed this discretion by requiring mandatory minimum sentences in certain cases, and generally requiring sentences within a narrow sentencing grid for defendants with particular background characteristics (e.g., number of prior convictions) who are convicted of particular crimes (see Tonry 1996, pp. 6–12, DuBow 1998, pp. 231–45). However, in limiting the open exercise of judicial discretion in the interests of reducing disparity in outcomes, the effect has actually been to increase (but mask) the discretion of prosecutors, while confining these activities to the ‘backroom.’ By constraining judicial discretion, prosecutorial discretion has been enhanced; restricting sentencing ranges for judges has promoted less visible, but equally consequential, sentencing practices by prosecutors.

The significance of increased prosecutorial discretion in the USA, as suggested above, seems to be that—among other things—American plea bargaining is beginning to appear more like the negotiations that take place in other nations. This ‘convergence’ as we might call it, has tempered both the desire and capacity for actors in the American system to engage in explicit plea bargaining; ‘deals,’ therefore, increasingly must be of the ‘implicit’ or ‘policy’ variety. While this makes plea bargaining more difficult to study—relegated, as it is, to the literal and metaphorical ‘backrooms’—it presents scholars with an interesting series of questions to consider.

5. Conclusion

As we move beyond the exploration of plea bargaining itself, a number of very important matters—e.g., the relationship of plea bargaining to sentencing reform and to court caseloads, the effects of culture, traditions, and institutions on plea bargaining activities, and the appearance of a convergence of plea bargaining practices, move to the fore. These are matters that should be high on our research agendas as we begin to fashion a new, better informed, and less naive set of plea bargaining questions for the twenty-first century.

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