Law: Is Plea Bargaining a Cop-Out?

Critics say yes, but efforts to ban it bring mixed results

Ideally anyone charged with a crime in the U.S. is entitled to his day in court. The litany of rights is familiar: the state must prove guilt beyond a reasonable doubt, the accused has the right to be tried by a jury of his peers, and an impartial judge must carefully weigh the facts before handing down a sentence.

The reality, as anyone involved with criminal justice can attest to, is far different. In the vast majority of cases, the accused has no trial. His "day" in court is the few minutes it takes him to plead guilty. "Here we have an elaborate jury trial system, and only 10% of the accused get to use it," says Colorado Law School Professor Albert H. Alschuler. "That's like solving America's transportation problems by giving | 10% Cadillacs and making the rest go barefoot." For most defendants, justice is done by way of a deal: a guilty plea in exchange for the promise of reduced charges or a lighter sentence. Bargains are generally struck with the prosecutor; the judge usually rubber-stamps them.

Plea bargaining is as widely criticized as it is prevalent. Defendants claim they are railroaded into abandoning their right to a fair trial by zealous prosecutors who "overcharge" them and then agree to reduce the charge in exchange for a guilty plea. The public, on the other hand, complains that criminal defendants get off too lightly. In plea bargaining, armed robbery often becomes unarmed robbery (this is known as "swallowing the gun"), and burglaries by night miraculously become the lesser crime of burglary by day.

Many lawyers and prosecutors defend plea bargaining as "flexible," claiming that bargaining can shape the sentence to the individual defendant. What is more, says Maricopa County (Ariz.) Attorney Charles Hyder, it is "the greatest weapon a prosecutor has. The prosecutor is in the driver's seat. Usually the defendant is not aware of any weaknesses in a case."

The strongest argument for deal making, however, is sheer necessity. Approved of by Congress and the President's Commission on Law Enforcement and Administration of Justice, plea bargaining has been condoned by the U.S. Supreme Court as "essential." It is widely accepted that without deals between the prosecutor and the accused, time-consuming trials would cause many courts to choke on overcrowded dockets. Chief Justice Warren Burger has said that even a 10% reduction in plea bargaining would double the number of trials.

Increasingly, however, the justification for plea bargaining as a necessary evil is being questioned. Most observers agree that certain overburdened urban jurisdictions would grind to a halt without it. But in two fair-sized cities, Portland, Ore., and New Orleans, district attorneys claim that they have been able to get stiffer sentences without backlogging the court docket by cutting down on plea bargaining. According to New Orleans District Attorney Harry Connick, when he limited plea bargaining, the city's criminal court judges complained that "they would have to spend a lot of time on the bench trying cases. My feeling was that they were getting paid full-time salaries, and they could damn well work full time."