In This Article Plea Bargaining

  • Introduction
  • General Overviews

Criminology Plea Bargaining
by
Rebecca K. Helm
  • LAST MODIFIED: 29 May 2019
  • DOI: 10.1093/obo/9780195396607-0268

Introduction

Plea bargaining is a process in the criminal justice system through which a defendant agrees to plead guilty to a specified criminal charge in exchange for a concession from the prosecution. This may include the prosecution ceasing to pursue any other criminal charges against the defendant, or recommending a more lenient sentence than they would have recommended otherwise. Although other jurisdictions allow sentence or charge reductions in exchange for guilty pleas (which can be referred to as plea bargaining), plea bargaining is typically associated with the United States system, and is used most extensively in the United States. This bibliography will focus on plea bargaining in the United States, bringing in global comparisons where relevant. In the United States, the constitutionality of plea bargaining was established in 1970 in the case of Brady v. United States, 397 U.S. 742 (1970). Today, plea bargaining is permitted in all states as well as in the federal system, and although there are some differences in regulation of pleas in each jurisdiction, plea bargaining is typically viewed as an essential and permanent component of the criminal justice system. Prosecutors are able to grant enticing concessions to incentivize defendants to plead guilty. In this context, the vast majority of criminal convictions occur as the result of guilty pleas, rather than jury trials. Currently, guilty pleas account for around 97 percent of criminal convictions at the federal level. However, the practice of plea bargaining has been the subject of debate among academics and legal practitioners. On the one hand, plea bargaining facilitates an efficient criminal justice system. Through increasing the number of cases resolved via guilty plea rather than trial, plea bargaining conserves resources, protects victims from the traumas involved in trial, and provides benefits to defendants through sentence or charge reductions. Many commentators believe that the US criminal justice system would be unsustainable without the vast majority of cases being resolved via guilty plea. However, the largely unregulated nature of the plea-bargaining system and particularly the concessions that can be offered by prosecutors in exchange for guilty pleas has led to a critical view of the practice from many commentators, who associate the practice with overzealous prosecution, wrongful conviction, and rights violations. Research suggests that the concessions offered by prosecutors in exchange for guilty pleas are leading to innocent, as well as guilty, defendants pleading guilty. This is known as plea bargaining’s “innocence problem.” As of 2018, the Innocence Project noted that 18 percent of known exonerees in the United States had originally pleaded guilty to the crime that they were accused of. Research examining plea bargaining includes traditional and empirical legal research, and, increasingly, social-science research examining the decision-making of defendants in the plea bargaining context.

General Overviews

Plea bargaining research includes research in both law and social science. Although no current resources have bought together all relevant perspectives in one overview, several resources provide good context for understanding the operation of plea bargaining and similar systems globally. Thaman 2010 examines types of plea bargaining and the spread of American plea bargaining into other legal systems, and Turner 2009 describes plea bargaining type systems across different jurisdictions. In the US context, Fisher 2003 and McConville and Mirsky 2005 are useful introductory books to explain plea bargaining and its rise to prominence. Lippke 2011 provides a useful overview of the ethical arguments relating to plea bargaining in the context of criminal justice procedure and principles.

  • Fisher, G. 2003. Plea bargaining’s triumph. Palo Alto, CA: Stanford Univ. Press.

    E-mail Citation »

    Describes the development of plea bargaining in the American criminal justice system, from its early origins to its pervasive role in the modern criminal justice system.

  • Lippke, R. L. 2011. The ethics of plea bargaining. New York: Oxford Univ. Press.

    DOI: 10.1093/acprof:oso/9780199641468.001.0001E-mail Citation »

    Provides an overview of the ethical arguments relating to plea bargaining in the context of criminal justice practices in the United States and Europe.

  • McConville, M., and C. Mirsky. 2005. Jury trials and plea bargaining: A true history. Oxford and Portland, OR: Hart.

    E-mail Citation »

    Describes the origins of plea bargaining and the increasing adoption of the practice in place of jury trials in the United States.

  • Thaman, S. 2010. World plea bargaining. Durham, NC: Carolina Academic Press.

    E-mail Citation »

    An edited volume that describes the plea bargaining system in the United States, how ideas from the US system have spread globally, and current guilty plea systems in Scotland, Germany, Holland, Denmark, Norway, Croatia, and Poland.

  • Turner, J. 2009. Plea bargaining across borders: Criminal procedure. New York: Aspen.

    E-mail Citation »

    Describes the mechanisms for resolving cases by guilty plea in jurisdictions including the United States, Germany, Bulgaria, Japan, and international criminal courts.

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