Novel Perspectives on Plea Bargaining – Q2 2023 Facts & Findings
Introduction
This article summarizes the most important findings and implications of research I conducted on the use of plea bargains throughout the Cook County criminal justice system during my time as an undergraduate student at the University of Chicago.
Does plea bargaining promote expediency at the expense of just outcomes when used to resolve cases in the American criminal justice system? If so, how should observers of this phenomenon react? Though my first instinct compelled me to strictly condemn this possibility, the pairing of good fortune with a rigorous undergraduate research inquiry has since allowed me to amend this interpretation for the better. In their simplest form, plea bargains are a type of legal negotiation in which “an agreement is set up between the plaintiff and the defendant” in a criminal case to resolve said case without the use of a trial.[i] These agreements outline stipulations to be upheld by both the prosecutor and the defendant (in league with the defendant’s defense attorney) in order for a settlement regarding the defendant’s charge(s) and/or sentence(s) to be reached and deemed acceptable by the presiding trial judge. Historically speaking, plea bargaining has existed as a mechanism of criminal case disposal in American criminal justice proceedings since as early as the late 18th century, establishing appellate and Supreme Court precedent after the end of the Civil War and continuing to grow in popularity ever since.[ii] As someone whose definition of justice championed the understanding that convicting those for whom reasonable doubt had not been fully bested was completely unacceptable, plea bargaining held the appearance of a procedural shortcut whose use egregiously undermined the thoroughness such a sensitive consideration demanded.
In defending the rationale behind these initial sentiments, I ask you to join me in considering the following scenario: John Doe is charged with committing Crime X, which carries a possible sentence of Y. The prosecutor assigned to John Doe’s case offers a plea bargain to reduce the charge from Crime X to Crime W, along with recommending that John receive a sentence shorter than Y, in exchange for pleading guilty to committing Crime W. John believes that he is being charged under false pretenses and would prefer to take his case to trial. Nevertheless, both John’s defense attorney and the prosecutor have encouraged him to accept the plea bargain, insisting that resolving his case quickly is far more important (to both him and the court’s other judicial actors) than ensuring that he is proven guilty beyond a reasonable doubt before being convicted. These parameters leave John with a choice to make. He could reject the offer and demand a trial, an option whose outcome is uncertain but would allow him to retain his position of innocent until proven guilty beyond a reasonable doubt by the prosecutor, or he could accept the plea bargain offer, with its more certain outcome, and forfeit his position of innocence (thereby relieving the prosecutor from the task of proving John’s guilt). Would you say that the above proposition is more likely to preserve John’s legal rights under the Constitution than simply taking his case to trial would? Alternatively, would you say that it upholds the court’s responsibility to ensure that the burden of proof is being met in John’s case? If you find yourself uncertain of how to best address the insinuations of this scenario and the questions it invokes, then take comfort in knowing that you are not alone.
With all of these implications in mind, it is very telling to know that much of the historical research conducted on plea bargain use has sought to convince legal scholars and the general public that expediency is the most desirable quality in case resolution, even when pursued at the expense of just outcomes. The reasons brought to bear in support of this stance are numerous but largely center around attitudes concerning the plea bargaining system’s aptitudes for: 1) minimizing overwhelming caseloads[iii], 2) maximizing resource allocations for existing caseloads[iv], 3) limiting the uncertainties of conviction and sentencing outcomes encountered by defendants who take their cases to trial[v], and 4) increasing the resolution rate of cases to restrict the various social, financial, and emotional costs of prolonged involvement with the court system[vi]. On the other end of this spectrum, however, notable rebuttals to this campaign of expediency often shed light on the plea bargaining system’s propensities for: 1) empowering prosecutors to wield unchecked discretion in determining the charge and sentence severity levels for the cases they pursue[vii], 2) disenfranchising judges from using their own discretion to establish more situationally-aware conviction outcomes[viii], 3) incentivizing innocent people to plead guilty to crimes they did not commit[ix], and 4) penalizing defendants who choose to see their cases through to trial[x]. While scores of trial judge, prosecutor, and defense attorney perspectives have been assembled, evaluated, and debated in order to synthesize these various positions, the predominant legal scholarship has mostly excluded the perspectives of criminal defendants.
Determined to rectify this oversight, I proposed and secured financial backing to conduct a research study that prioritized archiving these underrepresented perspectives during my final year as an undergraduate student. To achieve this specific end, I conducted a set of semi-structured interviews and administered small follow-up surveys with a group of ten previous criminal defendants (dubbed “returning citizens” in the study) who had experience accepting plea bargains throughout Cook County, Illinois. The study’s interview questions (inspired by comparable questions employed by Dr. Jeanette M. Hussemann in her 2013 PhD criminology dissertation for the University of Minnesota[xi]) explored topics ranging from how and why returning citizens decided to enter into plea bargains to their attitudes toward specific judicial actors within the court. The follow-up survey, being of my sole design, consisted of ten, more restrictive, multiple choice questions for which each returning citizen was instructed to select a single answer choice (out of a series of seven) that they believed best reflected their experiences with plea bargaining overall. Though the general study contained its fair share of methodological limitations (including the geographical restraints of the sample, the non-random selectivity of the sample, and the small sample size), the purpose of this research was always to be illustrative and informative. Looking beyond their lack of generalizability, the scarce perspectives I archived have intrinsic value because of their scarcity and extrinsic value because of the additional benefits we may now generate when consulting these perspectives for future criminal justice research.
After completing my research, I concluded that the overall findings suggest that my original assertion was correct. Plea bargaining, in many ways, does deliberately sacrifice what the returning citizens would classify as just outcomes for the sake of expediency. However, this was not the only conclusion worth noting in my final deductions, nor did it even appear to be the most important one. This status, instead, belonged to an affiliated conclusion, verifying that determining the suitability of the plea bargaining system requires as much of an interpersonal and contextual assessment as it does a procedural one. To illustrate this point, it is crucial for me to disclose that my findings further established that the returning citizens also considered case resolution expediency to be a top priority. That said, this regard was often overshadowed by concerns the returning citizens had for other, less satisfying, features of the plea bargaining system. These features consistently included: 1) pressures experienced at the hands of both their defense attorneys and the prosecutors to plead guilty, even if doing so was not the action the returning citizens wanted to pursue[xii], 2) a mistrust among returning citizens for their defense attorneys due to observed interactions that suggested a preference for obliging the interests of the prosecutors at the expense of their own[xiii], and 3) the perception of a lack of flexibility in detention sentences for nonviolent and minor drug-related offenses[xiv].
Despite the discrepancies emphasized above and elsewhere throughout the research study, the returning citizens were not entirely committed to the position of abolishing the plea bargaining system in favor of solely relying on the use of trials. Taken together, they believed attempting to categorize one system as objectively better than the other was naïve, as it failed to recognize plea bargaining’s existence as part of a larger and more nuanced case resolution structure. In this respect, plea bargaining is not objectively better or worse than trial because it promotes expediency since expediency is only one facet that makes up the tool and its functions within the greater structure. What makes the use of either system just or fair is whether they ensure that each case is well-considered, well-deliberated, and decided in accordance with what the available evidence can actually prove took place. In other words, justice does not depend on which tool is used, but on how and why the tool is used. The plea bargaining system is flawed. That much is indisputable. However, achieving greater equity requires us to better understand which features of the system produce its flaws and amend them, while leaving its other beneficial features intact.
[i] THE LAW DICTIONARY, https://www.thelawdictionary.org/plea-bargaining/ (accessed May 15, 2018).
[ii] Lucian E. Dervan and Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 103 THE JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY, 6, 1–48 (2013).
[iii] Molly J. Walker Wilson, Defense Attorney Bias and the Rush to the Plea, 65 U. KAN. L. REV. 272, 271-326 (2016).; Renada Williams-Fisher, Plea Bargaining Negotiations, 33 S.U. L. REV. 237, 237-248 (2015).; Jerold H. Israel, Excessive Criminal Justice Caseloads: Challenging the Conventional Wisdom, 48 FLA. L. REV. 761,761-780 (1996).; Roger J. Miner, The Consequences of Federalizing Criminal Law: Overloaded Courts and a Dissatisfied Public, 4 CRIMINAL JUSTICE, 18, 16-40 (1989).; James Kura, Prove You Need the Money: Public Defenders Should Use Caseload Data to Raise Funds and Influence People, 4 CRIMINAL JUSTICE, 21, 21-41 (1989).; Sam W. Callan, An Experience in Justice without Plea Negotiation, 13 LAW & SOC’Y REV. 327, 330, 327-348 (1979).; Martin A. Levin, Delay in Five Criminal Courts, 4 THE UNIVERSITY OF CHICAGO PRESS FOR THE UNIVERSITY OF CHICAGO LAW SCHOOL, 83, 83-131 (1975).
[iv] Ken Chasse, No Votes in Justice Means More Wrongful Convictions, 22, 1-28 SSRN (2016).; Carrie Menkel-Meadow and Robert G. Meadow, Resource Allocation in Legal Services: Individual Attorney Decisions in Work Priorities, 5 LAW & POLICY 239-240, 237-250 (1983).; Thomas W. Church Jr., In Defense of Bargain Justice, 13 LAW & SOC’Y REV. 522, 509-526 (1979).
[v] Russell D. Covey, Plea Bargaining and Price Theory, 84 GEO. WASH. L. REV. 920, 928 (2016).; Patricia D. Breen, The Trial Penalty and Jury Sentencing: A Study of Air Force Courts-Martial, 8 J. EMPIRICAL LEGAL STUD. 206, 213 (2011).; Jeffery T. Ulmer & John H. Kramer, The Use and Transformation of Formal Decision Making Criteria: Sentencing Guidelines, Organizational Contexts, and Case Processing Strategies, 45 SOCIAL PROBLEMS 248, 259 (1998).; Belinda R. McCarthy & Charles A. Lindquist, Certainty of Punishment and Sentence Mitigation in Plea Behavior, 2 JUST. Q. R. 363, 369 (1985).
[vi] John B. Arango, Defense Services for the Poor, 4 CRIM. JUST. 24, 25 (1989).; Ralph Adam Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 615, 623 (1987).; Sam W. Callan, An Experience in Justice without Plea Negotiation, 13 LAW & SOC’Y REV. 327, 330 (1979).; Francis J. Carney & Ann L. Fuller, A Study of Plea Bargaining in Murder Cases in Massachusetts, 3 SUFFOLK U. L. REV. 292, 293 (1969).
[vii] Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 COLOM. L. REV. 1304, 1366 (2018).; Kyle Graham, Overcharging, 11 OHIO ST. J. OF CRIM. L. 701, 704 (2014).; H. Mitchell Caldwell, Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System, 61 CATH. U. L. REV. 63, 72 (2011).; Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. ILL. L. R. 37, 75 (1983).; James Vorenberg, Decent Restraint of Prosecutorial Power, HARV. L. REV. 1521, 1525 (1981).
[viii] Julie Stewart, The Effects of Mandatory Minimums on Families and Society, 16 T.M. COOLEY L. REV. 37, 38 (1999).; Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & CRIMINOLOGY, 717, 755-756 (1996).; Philip Oliss, Mandatory Minimum Sentencing: Discretion, the Safety Valve, and the Sentencing Guidelines, 63 U. CIN. L. REV. 1851, 1854 (1995).; Daniel J. Freed, Federal Sentencing in the Wake of Guidelines: Unacceptable Limits on the Discretion of Sentencer, 101 YALE L. J. 1681, 1686 (1992).; Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less Aggregation, 58 U. CIN. L. REV. 901, 926 (1991).; Michael Tonry, Mandatory Minimum Penalties and the U.S. Sentencing Commission’s ‘Mandatory Guidelines’, 4 FED. SENTENCING REP. 129, 129 (1991).
[ix] David Bjerk, Guilt Shall Not Escape or Innocence Suffer? The Limits of Plea Bargaining When Defendant Guilt is Uncertain, 9 AM. L. & ECON. REV. 305, 311 (2007).; Scott W. Howe, The Value of Plea Bargaining, 58 OKLA. L. REV. 599, 629-630 (2005).; Scott Baker & Claudio Mezzetti, Prosecutorial Resources, Plea Bargaining, and the Decision to Go to Trial, 17 J. L. ECON. & ORG. 149, 150 (2001).; Bruce H. Kobayashi & John R. Lott Jr., In defense of criminal defense expenditures and plea bargaining, 16 INT’L REV. L. & ECON. 397, 397-398 (1996).; Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979, 1981-1982 (1991).; Albert W. Alschuler, The changing plea bargaining debate, 69 CALIF. L. REV. 652, 707 (1981).
[x] Candace McCoy, Plea Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform, 50 CRIM. L. Q. 67, 87 (2005).; Malcolm M. Feeley, Perspectives on Plea Bargaining, 13 L. & SOC. R. 199, 208 (1979).; John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12 (1978).
[xi] Jeanette M. Hussemann, Negotiating Justice: Defendant Perspectives of Plea Bargaining in American Criminal Courts, PHD DISS., UNIVERSITY OF MINNESOTA, PROQUEST LLC. 1-150 (2013).
[xii] Keelly Michael Jones, Plea Bargaining in the Cook County Criminal Justice System: Sacrificing Justice for Expediency?, 8 (No.2) PENN UNDERGRADUATE L.J. 77, 109-113 (2020).
[xiii] JONES, supra note xii, at 110-111.
[xiv] JONES, supra note xii, at 115-116.
Author Biography:
Keelly Michael Jones is a project assistant for the New Markets Tax Credit practice group at Applegate & Thorne-Thomsen, P.C. in Chicago, Illinois. He provides a wide range of administrative and project support to the group’s transactional attorneys, tax attorneys, and paralegals. He also completes specialized research projects for the firm and aids in the facilitation of the firm’s pilot Project Assistant Program. Keelly holds a BA in political science and a BA in public policy studies from the University of Chicago and plans to matriculate to law school in fall 2023.
email: kjones@att-law.com
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