Plea Bargaining

Definition / Rule

Plea bargaining is the negotiated resolution of criminal charges in which a defendant agrees to plead guilty (or no contest) in exchange for concessions from the prosecutor. It is the dominant mechanism for resolving criminal cases — over 90% of convictions result from guilty pleas rather than trial. The Supreme Court has recognized plea bargaining as an essential and constitutional component of the criminal justice system.

Types of Plea Bargains

1. Charge bargaining — prosecutor dismisses some counts or reduces a charge to a lesser offense
2. Count bargaining — prosecutor dismisses some counts in a multi-count indictment
3. Sentence bargaining — prosecutor agrees to recommend a particular sentence (not binding on the court absent a Rule 11(c)(1)(C) agreement)
4. Fact bargaining — prosecutor agrees not to present certain aggravating facts at sentencing

Constitutional Framework

Voluntariness Requirement

A guilty plea must be knowing, voluntary, and intelligent to be constitutionally valid. Brady v. United States (1970): plea valid even when induced by avoiding death penalty, so long as defendant understood the consequences. The trial court must conduct a colloquy (FRCP Rule 11) to ensure the plea is voluntary.

Prosecutor’s Leverage

Prosecutors may use significant leverage in plea negotiations:

• Bordenkircher v. Hayes (1978) — Prosecutor may threaten to indict on more serious charges if defendant refuses a plea. No due process violation; the give-and-take of plea bargaining is constitutionally permissible.

Brady Disclosure and Pleas

• United States v. Ruiz (2002) — Constitution does not require disclosure of impeachment evidence before a guilty plea. However, material exculpatory evidence bearing on guilt must be disclosed before plea (Ruiz left this open, but lower courts generally require it).

Broken Prosecutorial Promises

• Prosecutor’s failure to keep a plea promise may violate due process if defendant has detrimentally relied on it (Santobello v. New York (1971))
• Remedy may be specific performance or withdrawal of plea
• No right to enforce promise absent detrimental reliance

Ineffective Assistance in Plea Context

• Missouri v. Frye (2012) — Sixth Amendment right to effective counsel applies to plea negotiations; failure to communicate plea offer is deficient performance
• Lafler v. Cooper (2012) — Prejudice shown if defendant rejected plea due to bad advice and received harsher sentence after trial

Policy

Efficiency: Trials are expensive, time-consuming, and resource-intensive for courts, parties, and witnesses. Plea bargaining allows the system to function at scale.

Defendant autonomy: Defendants rationally accept pleas to gain certainty and avoid trial risk. The system respects their choice.

Critique: Plea bargaining produces coerced waivers of constitutional rights, disproportionately harms low-income defendants who cannot afford to “gamble” on trial, and may produce innocent defendants pleading guilty to avoid harsh trial penalties (the “trial penalty”). Prosecutorial power in the charging decision drives outcomes, with minimal judicial oversight.