Legal & DebateDUAL-USE

Plea-Bargain Pressure

What it is

The structuring of charges and sentencing exposure so that accepting a guilty plea becomes the rational choice regardless of guilt: stacked counts, mandatory minimums held in reserve, exploding offers, and the "trial penalty" of a far harsher sentence after conviction at trial.

How it works

Plea bargaining resolves the overwhelming majority of US criminal cases; the Supreme Court observed in Missouri v. Frye (2012) that about 97 percent of federal convictions and 94 percent of state convictions come from guilty pleas. The mechanism is a choice under uncertainty with an asymmetric payoff: plead to a certain, moderate sentence, or risk trial with a possible sentence several times longer. Bordenkircher v. Hayes (1978) upheld a prosecutor's threat to add a habitual-offender charge carrying life imprisonment if the defendant refused a five-year plea offer, and the practice of charging high to bargain down has been lawful since. Dervan and Edkins (2013) recreated the dilemma in a laboratory: students falsely accused of cheating were offered a small penalty to admit it or a much larger penalty if a panel found against them, and more than half of the innocent accepted the deal. Pretrial detention, an exploding offer that expires before discovery is reviewed, and collateral consequences add pressure. The National Registry of Exonerations lists hundreds of exonerees who pleaded guilty.

Real-world examples

  • •Bordenkircher v. Hayes (1978): Paul Hayes, charged with forging an 88-dollar check, refused a five-year plea offer; the prosecutor carried out his threat to charge him as a habitual offender, and Hayes received a life sentence that the Supreme Court upheld as a legitimate incident of bargaining.
  • •Dervan and Edkins (2013): in a study framed as an experiment on problem-solving, participants accused of cheating who were in fact innocent accepted a plea to a lesser penalty in more than half of cases rather than face a hearing with a larger penalty.
  • •The National Association of Criminal Defense Lawyers' 2018 report The Trial Penalty documented substantially longer federal sentences after trial than after plea and noted that only about 3 percent of federal cases went to trial.
  • •Brady v. United States (1970) and Santobello v. New York (1971) supplied the framework: a plea must be voluntary and a prosecutor's promise must be kept, but the pressure of a harsher alternative sentence is not, by itself, coercion.

Historical case studies

Bordenkircher v. Hayes

1978US Supreme Court

Paul Hayes was charged in Kentucky with forging a cheque for $88.30, an offence carrying two to ten years. The prosecutor offered to recommend five years if he pleaded guilty and said openly that if Hayes refused he would seek a new indictment under the state's habitual-offender law, which carried mandatory life. Hayes went to trial, was convicted, and received life imprisonment. The Supreme Court upheld the sentence five to four, holding that confronting a defendant with the risk of a harsher charge he is plainly subject to is a legitimate part of the "give-and-take" of plea bargaining. The decision is the constitutional foundation of what critics call the trial penalty.

Source →

Kalief Browder

2010–2015New York City

Arrested at sixteen in the Bronx on an accusation of stealing a backpack, Kalief Browder could not pay $3,000 bail and spent three years on Rikers Island, about two of them in solitary confinement, while his trial was postponed again and again. Prosecutors offered successively better deals, in the end an immediate release for a guilty plea to misdemeanours; he refused each one and insisted on a trial. The case was dismissed in 2013 when the complaining witness could no longer be found. Browder took his own life in 2015. His case, reported by Jennifer Gonnerman in The New Yorker, shows how pretrial detention turns a plea offer into a way out of jail whatever the facts.

Source →

Ethical guidelines

Where the line is

An offer grounded in the evidence, with a sentencing discount that reflects acceptance of responsibility and time for counsel to review discovery, is legitimate bargaining; stacking charges the prosecutor would not otherwise bring, threatening exposure many times the offer to punish the exercise of the right to trial, and deadlines that force a decision before the evidence is seen turn bargaining into coercion.

  • ●A plea offer that reflects the evidence and gives a real discount for acceptance of responsibility is a legitimate and, in practice, necessary part of criminal justice; the concern is the size of the gap between offer and trial exposure and the use of charges the prosecutor would not otherwise bring.
  • ●Prosecutors are bound by Model Rule 3.8 to charge only on probable cause and to disclose exculpatory evidence; an offer that expires before the defense can see the evidence is in tension with an informed plea.
  • ●Defense counsel must communicate every offer and advise on its consequences (Missouri v. Frye; Padilla v. Kentucky on immigration consequences); a plea entered without effective advice is constitutionally deficient.
  • ●Educational; rules vary by jurisdiction; not legal advice.

How to defend against it

  • ►Defendants: do not evaluate an offer until you have counsel and have seen the discovery; ask your lawyer to put in writing the realistic sentence after trial, the realistic sentence under the plea, and the probability of conviction, so the decision is yours and rests on numbers rather than fear.
  • ►Defendants: ask about collateral consequences (immigration, licensing, housing, registration, loss of civil rights) before pleading; they often outweigh the sentence and are not always volunteered.
  • ►Defense advocates: negotiate the exploding deadline itself, seek an Alford or no-contest plea where the client maintains innocence and the jurisdiction allows it, and preserve the record on any threat to add charges for refusing.
  • ►Citizens and jurors: a guilty plea reported in the news is not proof of guilt in the way a verdict is; the research on innocent pleas is a reason to hold prosecutors to their charging standards rather than to assume the system sorted correctly.
  • ►Everyone: apply the 24-hour rule where the deadline allows; a decision this large, made under pressure and often in custody, is the setting in which people choose the certain small loss over the uncertain large one.

References

  1. Dervan, L. E., & Edkins, V. A. (2013). The innocent defendant's dilemma: An innovative empirical study of plea bargaining's innocence problem. Journal of Criminal Law and Criminology, 103(1), 1-48
    Experimental demonstration that more than half of innocent participants accept a plea when the alternative penalty is large.
  2. Supreme Court of the United States (1978). Bordenkircher v. Hayes, 434 U.S. 357. United States Reports
    A prosecutor's threat to bring a more serious charge if a plea is refused does not violate due process.
  3. Supreme Court of the United States (2012). Missouri v. Frye, 566 U.S. 134. United States Reports
    Plea bargaining as the dominant mode of conviction (about 97 percent federal, 94 percent state) and the duty to communicate offers.
  4. National Association of Criminal Defense Lawyers (2018). The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. NACDL
    Documentation of the sentencing gap between plea and trial and the decline of federal trials.
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