Alternatives to Plea Bargaining

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Travis Britt

SOC 374

R. Cantor (10:30)

Short Essay #2

Alternatives to Plea Bargaining

Plea bargaining is a double-edged sword that is capable of restoring justice without using the standard court system. I see it to hold positives and negatives both for and against using it, while a lot of that depends on the circumstance of the case. However, I choose to argue against plea bargaining due to the fact that the guilty are often times getting off easier than they should be; justice is not being served. Understanding that plea bargaining can get you top secret information right on the spot, and help authorities gain knowledge about the larger scheme going on, I strongly feel that justice needs to be served to the person caught up in the legal system. The private secret nature of plea bargaining really causes the public to lose confidence in their criminal court system (Wender). I intend to offer a few ways that it could be limited to better our justice system as a whole. Plea bargaining has the right idea behind it, but the execution of the process could be shaped in a different manner with certain bans tie alongside it. The entire legal system is based on what the people feel best serves justice, and does so in a fashion that is fair. Plea bargaining is no different, but much more complicated in my opinion due to the variety of circumstances that it can withhold.

Plea bargaining leads lawyers to view themselves as judges and administrators rather than as advocates. This is dangerous because it subjects them to serious financial or other temptations to disregard their clients’ interest. The negotiation process encourages defendants to believe that they have gotten away with something in a sense. This then can bring corruption within the system into play (Friedman). Without the process of plea bargaining here, it would be a simple case in which a trail is held to determine the facts of the crime with an innocent or guilty verdict. That person would then serve their time and the world would move on. Of course that is easy to simply say, which is a main reason I believe plea bargaining remains in use. I do see that it holds an important role within the legal system, but could be done so in a different manner.

To limit plea bargaining I would start by prosecuting less. A plea bargaining prohibition might strain existing resources, but probably not to the point that it would jeopardize the justice system’s capacity to prosecute murderers, rapists, and armed robbers. It seems more likely that prosecutors faced with a prohibition of plea bargaining would screen their cases more thoroughly and insist on stronger evidence as a prerequisite to prosecution (Alshuler). Legislatures also could release existing resources by decriminalizing some victimless conduct.

Another idea that could limit plea bargaining would be placing a partial ban on it. It could be a system that only prohibits plea bargains when the concession is offered to the defendant for his guilty plea. With plea concessions restricted in such a way, defendants with relatively high chances of acquitted trials would refuse to plea bargain. Furthermore, prosecuting a weak case would usually result in a trial, while a strong case would be disposed of through plea bargaining (Friedman). Since prosecution resources do not allow for a high trial rate, prosecutors would then be forced to refrain from bringing the weaker cases in order to direct scarce resources to the stronger cases that can be settled (Robertson). This partial ban would then encourage prosecutors to refrain from even taking on weak cases and reduces the risk of an innocent person being charged. The partial ban would also force the potentially innocent defendants to face a trail instead of allowing them to a plea bargain.

A partial ban cannot assure that the prosecutor would never bring weak cases in, but if the cost of weak cases becomes much higher that it was before a ban, then the proportion of prosecuted weak cases would decrease significantly. The partial ban not only protects the innocent better, but it also protects them better than a total ban. A total ban would increase the cost of all cases, both weak and strong. With that in mind, prosecutors might then still prefer many weak cases where innocence is more likely. This would not be the goal intended if limiting plea bargaining was up to myself. A partial ban only increases the cost of the weak cases, and thus makes these cases relatively more expensive (Friedman). With fewer weak cases brought, fewer innocent defendants face the risk of conviction, serving justice in the best possible way.

With an issue as big a plea bargaining there will obviously be objections to a partial ban and any limitation within the system. The main argument I could see the opposition using would be based off the fact that plea bargaining speeds the conviction process up and reduces some of the costs. Prosecutors routinely rely on the process to dispose of their caseloads in an efficient and timely fashion. Plea bargaining does in fact reduce the time lag between the offense and the punishment, which potentially benefits not only the state, but also defendants, particularly those incarcerated. The objection would continue on to argue that by reducing the time between crime and punishment that it enhances the deterrent effect of both conviction and punishment (Alshuler). In addition to a faster and more efficient case, plea bargaining reduces costs, uncertainty, and risks. It gives the courts and prosecutors an opportunity to direct their resources more effectively, mitigates potentially severe punishment, and provides flexibility. In conclusion to the opposition they would argue that plea bargaining exists because its supporters believe that the criminal trial is much more costly and time-consuming and no more likely to provide a just result.

The idea behind the process of plea bargaining is reasonable, but changes should be made. I feel my argument for a partial ban would help patch some of the mishaps that occur in court. The cheapest and most effective way to discourage the prosecution of weak cases is to rely on the prosecutor’s estimation of the case. Of course, if the aim is to control prosecutorial discretion, one cannot simply rely on prosecutors’ asserted evaluations of the evidence. By using the links between plea bargains the prosecutor’s real evaluation of the case can be revealed, but it also must be used under control. Since a substantial plea bargain concession signals weakness in a case, the partial ban can discourage prosecutors from bringing unsupported charges in a cheaper and more effective way than preliminary hearings or grand juries (Robertson). In conclusion, plea bargaining will always serve as an option for the convicted, but a partial ban would best fit the needs of what justice is asking for.


Alshuler, Albert W. Plea Bargaining and its History. Columbia Law Review Association. Vol 79 No. 1 (Jan. 1979) pp. 1-43.

Friedman, Lawrence M. Plea Bargaining in Historic Perspective. Blackwell Publishing. Vol 13 No. 2 Special Issue on Plea Bargaining. © 1979 pp. 247-259.

Robertson, Geoffrey. Crimes Against Humanity; The struggle for global justice. New York: The New Press. © 2006 pp. 312-323

Wender, Johnathan M. Course Pack, Soc 374 Law and Society. University of Washington: Creative + Communications. © 2010 pp.695-776

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