Plea bargaining refers to the practice, common in U.S. courts, wherein a criminal defendant agrees to plead guilty in exchange for leniency by the prosecutor or district attorney. According to the Bureau of Justice Statistics, 95 percent of criminal convictions in U.S. courts are obtained through guilty pleas. Although it is not clear what percentage of guilty pleas entail an explicit "bargain" (i.e., defendants may plead guilty without any formal agreement), it is likely that most guilty pleas include some concession on the part of the prosecutor, or at least the assurance that the judge will be more lenient.

Three types of plea bargains are most common. Charge bargaining refers to the defendant pleading guilty to a less serious offense or to fewer charges than would be brought if the case went to trial. For example, a charge of first degree murder may be dismissed if the defendant agrees to plead guilty to second degree murder, or a charge of delivering narcotics might be reduced to possession of narcotics. Alternately, a prosecutor might dismiss several less serious charges if the defendant pleads guilty to the most serious charge. In sentence bargaining, the defendant pleads guilty in exchange for the prosecutor recommending a less severe sentence than would be likely to follow a trial conviction. Finally, fact bargaining entails negotiating over "facts" that can increase the sentence, such as the quantity of drugs involved, the possession of a weapon during the crime, or that the conviction constitutes a "third strike." Fact bargaining is especially important when the crime is subject to a "mandatory minimum" sentence.

Although judges are not required to comply with prosecutors' recommendations in plea agreements, they typically do. Research also finds consistently that judges sentence defendants to jail or prison less often, and typically order shorter terms of incarceration, if defendants plead guilty. This "plea reward" (or "trial penalty") is found even among defendants convicted of similar crimes and having similar criminal histories. Many studies find the type of plea entered is one of the strongest predictors of sentence severity, after the seriousness of the crime and the defendant's criminal history.

The most common explanation for courts' and prosecutors' reliance on plea bargaining is that it is the most efficient means of resolving the large volume of criminal cases handled in state and federal courts. Jury trials are time consuming for prosecutors, and it would be virtually impossible for most criminal courts and local jails to accommodate jury trials for most defendants. By negotiating plea bargains in most cases, all parties benefit. The courts are able to process a larger volume of cases, prosecutors are ensured a high rate of convictions, and local jails are relieved of the need to hold a large number of defendants awaiting trial. Of course, by pleading guilty, defendants receive a less severe punishment than likely would follow a trial conviction, they spend less time in jail prior to sentencing, and they minimize their criminal record. Plea bargains are also attractive because they reduce the uncertainty inherent in a trial, for both the prosecution and the defense. Research typically finds that prosecutors also take into consideration the seriousness of the crime, the defendant's level of culpability, and the threat that the defendant poses to the community when deciding whether to grant concessions for a guilty plea. Community norms and political considerations may also become a factor in plea bargaining decisions, particularly in high-profile cases.

References:

1) Fisher, George. 2003. Plea Bargaining's Triumph: A History of Plea Bargaining in America. Stanford, CA: Stanford University Press.

2) Gottfredson, Michael R. and Don M. Gottfredson. 1988. Decision Making in Criminal Justice: Toward the Rational Exercise of Discretion. 2nd ed. New York: Plenum.

3) McDonald, William F. 1985. Plea Bargaining: Critical Issues and Common Practices. Washington, DC: U.S. Department of Justice, National Institute of Justice.

4) Vogel, Mary E. 2007. Coercion to Compromise: Plea Bargaining, the Courts, and the Making of Political Authority. New York: Oxford University Press.

5) Walker, Samuel. 1993. Taming the System: The Control of Discretion in Criminal Justice, 1950-1990. New York: Oxford University Press.

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