Modern legal dramas consist of intense cross-examinations and stunning witness confessions. To the untrained eye, hard-fought courtroom showdowns are the norm in the American judicial system. However, the reality of the U.S. court system is far less flashy. Plea bargaining—the system by which prosecutors offer defendants deals that avoid trial often in exchange for a lesser charge or sentence [1]—accounts for 95% of convictions in the U.S. [2], with only 2% of federal criminal cases going to trial [3]. While plea bargaining may appear to be an amoral practice that saves taxpayer resources, the truth is more complex. Critics argue plea bargaining generates a “prisoner’s dilemma” that can incentivize even innocent defendants to plead guilty, corrupting the justice system and harming marginalized groups.

Plea bargaining has occurred since the U.S.’s inception but only became a widespread practice during the Prohibition Era. Given the volume of alcohol-related indictments, by 1925, almost 90% of convictions came from plea bargains [4]. Despite the prevalence of plea bargaining, the practice existed outside formal federal law. In the 1960s, a series of Supreme Court rulings transformed plea bargaining into a standardized and constitutionally protected process. 

Plea bargaining cases can be divided into two broad categories: those that protect defendants’ liberties and those that maintain prosecutorial discretion. Boykin v. Alabama (1969) and Santobello v. New York (1971) set the precedent that plea agreements must be free from coercion. North Carolina v. Alford (1970) and Brady v. United States (1970) upheld the use of plea bargains even in cases when defendants plead guilty just to avoid the death penalty. The balance between these rulings creates a system tolerated by public defenders and prosecutors alike, thereby implicity endorsing plea bargains as the new judicial norm. Gideon v. Wainwright (1963) affirmed the rights of all defendants to counsel, making the prosecutors’ jobs more difficult. This further incentivized the use of plea bargains as trials became more difficult for prosecutors. These rulings created the plea bargain-dependent status quo. 

Investigating the reasoning behind plea bargaining is crucial in understanding why it poses a potential threat to civil rights. Proponents of the plea-bargain system have two common stances. The first is that plea bargaining is a moral good, and that miscarriages of justice in the system are flukes. The second and more common view is that plea bargains are necessary evils in our underfunded judiciary. As Potter Stewart put it in the majority opinion of Bordenkircher v. Hayes (1978), “Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system” [5]. This argument rests on the undisputed truth of the public defense system in America: it is underfunded. 

 Los Angeles County, the largest unified court system in the country, proves an effective case study. A 2023 report found that L.A. public defenders carry workloads of 4,160 hours per year [6], a figure that exceeds double their yearly workable hours. As a result, many public defenders rely on a so-called “Meet ‘Em and Plead ‘Em” strategy. This involves defense attorneys pushing plea deals on their clients to preserve their own time and resources. While this may raise alarm, there are many cases in which quick plea deals serve both defendants and attorneys. Many plea bargains involve defendants accepting a reduced charge—reckless driving instead of a DUI, for example. Public defenders assert that these types of pleas are essential in preventing a system-wide backlog. 

Prosecutors also argue that permitting plea bargains rewards defendants who take responsibility for their actions and incentivizes individuals to become informants to take down more serious offenders. Famously, Sidney Powell and Kenneth Chesebro, both attorneys for former President Donald Trump, recently pleaded guilty to reduced charges in the Georgia election interference case [7]. Notably, Powell and Chesebro agreed to testify against the other defendants, including Trump, in exchange for probation. 

While these anecdotes support the plea bargain system, many assert that plea bargain reform or even abolition is a fairer path. This is for two major reasons: the theory-based argument that plea bargains are unconstitutional and the empirical argument that they incentivize innocent defendants to plead guilty. 

The constitutional argument is best introduced through the anecdote of Bordenkircher v Hayes (1978). Paul Lewis Hayes, who had two previous felony charges, was arrested for forging a $88.30 check. The prosecutor warned Hayes that if he refused to take a plea deal, he would seek a life sentence under the Kentucky Habitual Crime Act. Hayes maintained his innocence and the prosecutor went through with his word. As a result, Hayes was sentenced to life in prison for a low-level forgery, a sentence that the Supreme Court upheld. Critics of the Hayes ruling argue plea bargains violate defendants’ Sixth Amendment rights. They argue that plea bargaining cannot be legal since the Constitution mandates trial by jury and plea deals deny a defendant’s right to a trial. Most plea bargains also involve waiving a defendant’s right to an appeal, an otherwise constitutionally protected right [8]. 

The response to this argument is grounded in the idea of informed consent. The court has established that individuals can waive their constitutional rights—a driver can allow a police officer to search their car without a warrant, for example. Hence, if defendants are voluntarily waiving their rights, how can this be unconstitutional? 

This raises questions about the nature of consent. Some critics argue that plea bargains are always coercive and therefore nonconsensual due to the force inherent in incarceration. Prosecutors have elevated negotiating positions when a defendant is in custody. This results in the “time-in phenomenon.” This is when prosecutors offer defendants “time-served” pleas—where defendants are released after signing—while at the same time arguing that judges should deny bail to these defendants for public safety reasons [9]. Since being incarcerated is economically and personally disruptive, it is no wonder that individuals take plea bargains to get out of jail, accepting guilt for crimes they did not commit. These cases are not isolated incidents: Samuel R. Gross’s 2018 paper cites 133 examples of defendants pleading guilty who were later exonerated [10]. While many of these defendants took time-served pleas, many did not. This prompts an additional question; why, if not to get out of jail immediately, would an innocent defendant plead guilty? 

The answer is simple: the trial penalty. This refers to the tendency of prosecutors to recommend large sentences when defendants refuse to take plea deals. Faced with life in prison and equipped with an overworked public defender, innocent defendants like Rodney Roberts feel they have no choice but to plead guilty. In 1996, Robert was arrested on suspicion of kidnapping and sexual assault. His lawyer urged him to take a plea deal to avoid a potential life sentence [11]. As a result, Rodney served 18 years in prison before DNA evidence exonerated him. 

Rodney’s case also exposes how plea bargaining’s disproportionately impacts marginalized groups. For instance, prosecutors are more likely to offer white defendants plea bargains that reduce their charges [12]; The odds of receiving a plea bargain that includes being incarcerated are 19% higher for Black defendants than white ones [13]. Non-citizens also face unique challenges as a result of the current plea bargaining system. Given that even misdemeanor charges can result in automatic deportation, attorneys for undocumented or otherwise non-citizen defendants must negotiate “creative” plea deals [14]. There have been some recent improvements in this area: by safeguarding against unexpected deportations, Padilla v. Kentucky (2010) offered some reprieve for noncitizen defendants [15].

While many scholars agree on the troubling nature of the current plea system, they tend to disagree on the paths to mending it. The abolitionist argument is simple: plea bargains are inherently exploitative and therefore unconstitutional.

In 1975, the state of Alaska eliminated plea bargaining. Comprehensive research done on the subject has yielded conclusive results: banning plea bargaining had a limited effect on conviction rates and court processes paradoxically accelerated [16]. Sentencing lengths increased universally, with upticks as high as 237% in some areas. While the Alaska case study helps explore the issue broadly, its scope is limited. It was not a total ban and featured a small sample size. Also, abolishing plea bargaining cannot work in a vacuum. The racial biases in the American criminal justice system, mandatory minimum sentencing laws, and the unequal material conditions throughout the US all contribute to the issues plea bargaining exacerbates.   

Because abolishing plea bargains yielded mixed results, many experts agree that the correct path is reform. Plea bargain reform takes two broad approaches: eliminating the coercive nature of plea deals and removing incentives for prosecutors to rely on plea bargaining. 

Multiple approaches are necessary to combat the coercive nature of plea deals. First, jurisdictions should reform their policies regarding time-served plea deals. Given that these deals are enticing for innocent defendants, judges should approve the legitimacy of these bargains on a case-by-case basis. Courts should also grapple with the constitutionality of offering plea deals to incarcerated defendants in general—as opposed to those on bail—given the force inherent in incarceration. Finally, judiciaries should expand the plea bargain appeal system. Defendants who take plea deals are still eligible for certain types of appeals—writs of habeas corpus, for example—but judiciaries should further standardize these practices to assist defendants who seek to withdraw their pleas. 

To reduce the prevalence of plea bargains, prosecutorial reform is essential. This should begin with eliminating plea deals from a prosecutor’s conviction record, a common practice across the U.S. [17]. Many plea bargain reformists propose that distinct prosecutors handle the plea bargain and trial phases of a case. So-called “executive prosecutors” would attempt to negotiate plea deals under the guidance of a judge, and if these processes were unsuccessful, the district would assign the case to an uninvolved judge and prosecutor for trial. This would prevent the trial penalty from punishing defendants whose pleas were unsuccessful.  

These reforms would not change the underlying conditions that make the plea bargaining systems devastating. However, they could mitigate some of the discrepancies. Reformed systems like New Zealand’s protect the rights of the accused while allowing for deals under certain circumstances.    

Americans have grappled with the role of plea bargaining since the country’s inception. Like many national issues, it comes down to two competing interests: those of underfunded prosecutors and public defenders and those of defendants, especially those from low-income and minority communities. The benefits of plea bargaining are undeniable, both in terms of judicial efficiency and opportunities for sentencing reduction. However, this reality cannot become a defense for today's unfettered plea bargaining system. The U.S. hails its citizens' rights to a free and fair trial. It cannot simultaneously justify 95% of its defendants never seeing one. To guarantee the rights of all Americans, we must prioritize plea bargain reform.