Why Judges and Prosecutors Engage in Plea Bargaining

Moving cases along, and making sure that there's room in the jails and prisons for truly bad actors, are two reasons why plea bargaining is part of the system.

For judges, the primary incentive to accept plea bargains is to move along their crowded calendars. Most judges simply don't have time to try every case that comes through the door. Prosecutors face similar pressures. Several additional factors support plea bargaining.

Overcrowded Jails and Prisons

Because jails are overcrowded, judges may face the prospect of having to let convicted people (housed in the same facilities as those awaiting trial) out before they complete their sentences. Judges often reason that the quicker those offenders who are not likely to do much jail time anyway are "processed" out of jail (by plea bargains), the fewer problems with overcrowding, and the less frequently serious offenders will be let go before their full sentence has been served.

Overcrowding in California

The overcrowding issues extend to prisons, too. Sentencing a defendant to county jail, or a shorter time in state prison, will ease the problem of not enough room in state prisons. In California, whose prison system is under a federal court order to ease overcrowding, the governor has ordered prosecutors to "realign" the way they handle certain non-violent, non-serious, non-sex crimes. Responsibility for the custody, treatment, and supervision of these defendants has shifted from the state to the counties. As a result, there's more space in the state prisons, but counties have more responsibilities, resulting in large pressures to plead cases to no-jail or low-jail sentences.

Clogged Courtroom and Prosecution Calendars

For a prosecutor, the judge's concerns about clogged calendars are the prosecutor's concerns as well. When the judge is bogged down, the judge yells at prosecutors to move cases along quicker. To keep judges happy (and keep the machine rolling), prosecutors must keep cases moving.

Prosecutors are, of course, also concerned for their own calendars. Clogged calendars mean that the prosecutor's staff is overworked. Plea bargains lighten the staff's caseload. Because plea bargains are much quicker and require less work than trials, they are also easier on the prosecutor's budget. With today's cutbacks on already slim resources, D.A.s feel they will have additional time and resources for more important cases if they conclude a large number of less serious cases with plea bargains.

An Assured Conviction

Another benefit to the prosecution is an assured conviction. No matter how strong the evidence, no case is ever a slam dunk. The prosecution may wage a long, expensive, and valiant battle, and still lose the case.

Protecting Sources, Courting Witnesses

Plea bargains also allow prosecutors to protect government informants. Many informants have criminal records. If a case were to go to trial and the informant were to testify, the defense in many cases could impeach the informant with his or her past criminal history. But in the context of a plea bargain, the prosecution does not have to turn over an informant's criminal history to the defense (United States v. Ruiz, U.S. Sup. Ct. 2002).

Plea bargains also allow prosecutors to offer good deals to a defendant who could help them in another case. For instance, they can offer a deal to someone who, though guilty, is prepared to give testimony about a codefendant or help resolve some other unsolved case.

Example: Bran Dess, an experienced criminal with a long rap sheet, planned to rob Donna's Liquor store. He recruited Martha Stevens to be his lookout. Martha has no criminal history and is just 18. She merely stood guard; she was not armed and did not know Bran had a gun. As Bran threatened Donna and forced her to empty the cash from the register into his money bag, Bran's gun accidentally fired. Donna suffered serious but not fatal injuries; Bran and Martha fled. Martha later confessed to the police. Bran pleads guilty to armed robbery and gets sentenced 25 years to life in prison—ironically, the same sentence he likely would have gotten after trial, because of his record and the nature of the robbery. Martha, however, though technically guilty of armed robbery, is offered a plea to larceny (theft), for which she may serve up to one year in prison, in exchange for her testimony against Bran. The prosecutor likely justified the deal by reasoning that Martha helped to get the really bad guy off the street and played only a minor role in the robbery, and that this was her first offense. These last two factors would ordinarily tend to lighten Martha's sentence even without her cooperation.

Protecting Victims

Victims can also benefit from plea bargains, especially when a victim wants to avoid the stress of testifying and facing a perpetrator at a trial. A guilty or no contest plea is quicker and also tends to receive less publicity than a trial.

But not all victims are happy to see cases bargained away. Many victims are dissatisfied when defendants are allowed to enter plea bargains, feeling that the harms they suffered were disregarded and the defendants got off too easily. As a result of the efforts of victims' rights groups, laws in many states now allow victims to have a say in the plea bargaining process. Michigan, for example, requires prosecutors to consult with victims before entering into plea bargains. In other states, victims have a legal right to come to court and address a judge personally before the judge decides whether to accept a plea bargain. Still a third possibility for victims in many states is to consult with the probation officer before the officer prepares the presentence reports that often influence a judge's sentencing decision.

The Prosecutor's Choice

Finally, prosecutors may use plea bargains to circumvent laws they either don't agree with or that are very unpopular. For instance, a prosecutor may disagree with laws prohibiting possession for personal use of small amounts of marijuana, so the prosecutor's office may have an unwritten policy of giving all such offenders "offers they can't refuse," such as a $25 fine and ten hours of community service.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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