More than 90% of convictions in the U.S. come through plea bargaining. The process has been blamed for many of the criminal legal system’s ills – including growing incarceration rates, sentences that are too harsh or lenient, and a lack of transparency. But its use and abuse have only increased in recent years.
Prosecutors eager to reduce backlogs through guilty pleas both reduce charges against clearly guilty defendants and threaten other defendants with overly harsh sentences, even in weak cases. On the other side, defense attorneys are often willing to proceed with dubious plea offers, because a discounted sentence can be counted as a “win” compared to a conviction at trial. By the time a plea-bargained case gets to a judge, the parties have settled on all relevant facts, charges, and, in many cases, the terms of the sentence; the resulting convictions often bear minimal relation to the defendant’s acts and are vetted in brief guilty plea hearings that bear little resemblance to trials.
Christopher Slobogin, the Milton R. Underwood Chair in Law and Director of the Criminal Justice Program at Vanderbilt Law, views this flawed plea-bargaining process as an inevitable component of an adversarial U.S. criminal legal system that allows the parties to control the production of evidence in criminal cases. “Even more so than at trial, the adversarial mindset governs at plea bargaining,” he writes in Chapter 8 of his book Rehabilitating Criminal Justice. He notes that, while plea bargaining may be necessary in light of the high crime rates and trial costs in the U.S., it should be restructured to improve “its ability to arrive at substantively legitimate results.”
To that end, Slobogin offers two significant modifications to the plea-bargaining process.
Shift the goal of plea bargaining from retribution to reduction of risk
In the current retributive system, where the length of punishment is established at the time of sentencing based on “just desert,” prosecutors control the potential sentence because they control the charge. Slobogin argues that this system gives prosecutors far too much ability to manipulate outcomes, threaten draconian sentences, and obtain guilty pleas that, ironically, have little relation to culpability.
He advocates instead for a “preventive justice” regime that, within broad retributive ranges, bases sentences on the defendant’s risk of reoffending and whether it can be reduced. This determination would be made by the parties and presiding judge if the parties can agree on a disposition, and by a parole board if they cannot. In this regime, defendants, especially those who are not considered high-risk, will have much more leverage over prosecutors, because parole boards, not prosecutors or judges, will control sentence length.
Abolish guilty pleas for plea bargains that result in more than six months of imprisonment
This procedural adjustment would require all serious cases, even those in which the parties agree on a disposition, to be fully evaluated in court, “with the judge monitoring the agreed upon charges, ensuring the relevant facts are proven, approving any dispositions recommended by the parties, and imposing the range within which the disposition – whether the result of a bargain or left to the parole board – must occur.” Such a change, Slobogin argues, is more likely than the current system to provide defendants with their constitutional rights of confrontation and compulsory process, while also shining a public spotlight on the plea-bargaining process.
The author refutes critics who suggest that abolishing guilty pleas and requiring trials would collapse the system. He notes that most criminal cases do not meet the six months imprisonment threshold. For those that do, he argues that guilty defendants wanting guaranteed dispositions would still have incentive to confess and waive the right to jury, which would make trials much simpler. In many cases, they would bear a closer resemblance to sentencing hearings than a trial.
“Both of these proposals can be implemented without violating the Constitution, and both are feasible,” he writes. “Past and current practices in this country suggest that plea bargaining and preventive justice can work well together.”
Rehabilitating Criminal Justice, published by Cambridge University Press, is available to order.
