Plea bargaining and the realization of justice

Plea bargaining and the realization of justice

Plea barging is where a criminal defendant, with the help of an attorney and the prosecutor of the case, reaches a form of agreement where the defendant takes a guilty plea in substitute for a reduced sentence or a reduced charge. It follows therefore that there are two types of plea bargains in our justice system. The first one is a charge bargain, where an agreement is a prosecutor and the defendant reach an agreement to the effect that the defendant will plead guilty to a crime that is less than the one he/she was facing. For instance, a charge of Murder becomes a charge of manslaughter after a plea bargain. The second type of bargain is a sentence bargain where the prosecutor agrees that the defendant will serve the minimum time for a certain crime or minimum time with parole after serving the required time. The effect of plea bargains is that they conclude the case without a proper trial (Gorr, 2007).

Plea bargaining and the realization of justice

The Federal Rules of Criminal procedure of the federal court as per rule 11(e), provides the legal framework for a plea bargain. The rule also provides for the procedure of plea bargaining, stating that it is for the prosecutor to make the offer to the defendant for the removal of a charge or charges or for the dismissal of a particular sentence. The plea-bargaining also according to the rule has to take place before the commencement of the trial. Still, there are some circumstances where a judge can agree to a plea bargain after the trial begins if the prosecution provides the court with a good reason (Gorr, 2007).

In addition to the above, both the prosecution and the defendant, through his representation have to show to the court that the defendant himself./herself reached the decision to take the plea bargain offered to them freely and without duress. Further, the court has to satisfy that the defendant understands the bargain itself and that by taking the bargain, he/she is waiving their right to trial. Once the court is satisfied with above, then the bargain place on record, and the defendant and the prosecution are then to effect their agreement.

History of Plea bargaining

The history of plea bargains dates back to the 18th century, a time once an accused person confessed to committing a crime, the person would serve time without a trail by the courts that time. Moreover, the system of court at that time was a non-adversarial kind of jury, and the hearing of matters was summarily in less than a day. There was no legal representation for the defendant and the prosecution had a layperson articulate the case and question the defendant. Further, there was no voir dire for the juror selected and the defendant furnished the court with the facts of the case as he had witnessed. The judge could then guide the jury on the facts of the case and both would decide whether the defendant is guilty. Nevertheless, with the need to protect the people from wrong convictions lead to the rise of a very complex and expensive system of justice and thus emerged the importance and need of plea-bargaining. However, with the progression of precedent, plea bargaining can be traced to the 1970 Brady v. United States case. In this case, the defendant was facing charges of kidnapping and assaulting the victim, a charged by which the sentence was death upon the recommendation of the court. However, the defendant learn’t that his co-accused had taken a plea of guilty and further agreed to give evidence in court against Brady. He then changed his plea to guilty and was to serve 30 years in prison (Lippke, 2006).

However, the defendant sorts relief from court, stating that the possibility of the death sentence overrode his free will and compelled him to take the plea of guilty. The court then laid down the rules for plea bargain as enjoyed by most Americans today, such as the concept of free will; the defendant should be freely advice about the effect of taking a plea bargain that it means he has given up his right to trial. Moreover, the court stated that a defendant did not have the right to reverse a plea taken freely and with knowledge since the person does not agree with the sentence given to him (Lippke, 2006).

How plea bargains undermine justice for accused person

Plea bargains are entrenched in practices within the criminal justice system due to its seemingly expedient nature. The matter never reaches before the court and so saves taxpayers’ money and so on so forth. However, our constitution in the sixth amendment provides an absolute right that all accused persons should enjoy. This is the right to trial by either an independent judge or jury. Now, plea bargains are neither constitutional nor unconstitutional, they are convenient to all persons other than the defendant.

In America today, 90% of the persons charged with a felony will take a guilty plea, while the remaining 10% will take the options available and those are trial by jury or trial by the judge. The most important character of plea bargaining is that most people who opt for a full trial face the risk of being charged with a greater offence and a greater sentence thereafter as opposed to those who take a plea bargain deal. Scholars have pointed out that in courts today, a sentence given after the defendant has received full trial according to the criminal procedure where factors such as the defendant prior record is five times more severe as compared to a situation whereby the same defendant would have settled for a plea. This therefore means that there instances where an innocent person takes a plea out of fear of the severity of the charges and sentence they are likely to get if they entered into a full trial. This factor is quite intimidating and overrides the free will of the defendant (Benner, 2012).

Furthermore, the standard of proof in the case of the plea bargains which is based on probable cause is lower than the constitutional requirement that a person is found guilty if there is evidence in favour of a guilty charge enough to sway the mind of the judge/jury beyond reasonable doubt. The probable cause requires that the prosecution show a mere connection between the defendant and the crime committed and the likelihood of the defendant to have committed the crime in question. However, the doctrine of the standard of proof being beyond reasonable doubt is the cornerstone of the justice system and requires that the prosecution prove to the court absolutely that the defendant committed the crime. This fact alone is enough reason for a complete reform of the justice system (Benner, 2012).

The prosecutor and the judge are given the power of discretion and they are supposed to judge each case according to its worth, the system of plea bargain has however, over-extended this power to the detriment of the defendant. I believe the just system is only just if the criminal procedure is followed. The short cut provided by the doctrine of plea-bargaining perverts the whole notion of the criminal justice system. The whole notion of the criminal justice system is to protect the defendant right of presumption of innocence. William Blackstone a British legal scholar once pointed out, that it would be better for one hundred guilty men to escape justice than for one innocent person to suffer for a crime they did not commit. In addition to the above, the aphorism of “justice should be seen to be done”, though generated in England is true for all justice systems. Thus the issue of plea bargaining does not fulfill the aphorism of justice being seen to be done (Benner, 2012).

There are situations where a person, who is taking the plea bargain, is actually guilty of the crime. The structure of the plea bargain offers the accused person either a lesser charge or a lesser sentence for a crime committed. If it is in the case of Murder, I believe it is not in the best interest of the victim and the family to have the person who took the life of their loved one to be charged with a lesser crime or serve a lesser sentence other than that which is rightfully permissible by the law.

The American legal system is heavily borrowed from the common law. In both instances, the accused person has the right not to give incriminating evidence against oneself This is because the burden of proof is given belongs to the prosecution and the defendant the attorney puts to test the evidence provided by the prosecution. The whole notion of plea bargaining is based on the defendant willingness to give incriminating evidence against oneself against well-established principles (Fisher, 2006).

In criminal proceedings further, the threshold for proof is in two fold. One, the prosecution has to prove that is it the defendant who committed the guilty crime and secondly that the defendant at the time of committing the crime had a guilty mind that is, motive for committing the crime. There are various reasons for criminal actions; most psychological reasons would absolutely reverse a guilty verdict such as duress, self-defense or a disease of the mind. Plea-bargaining takes away the right of the defendant to have the state of his mind or the reasons of committing the crime analyzed by the court. It is purely based on the actions of the accused person. This means that even if the accused committed the crime, but he was suffering from temporary insanity at the time of committing the crime then an injustice has occurred since technically, insane persons are not responsible for his or her actions (Benner, 2012).

The doctrine of plea-bargaining also undermines the whole notion of a fair and equitable trial. In addition to the above, the criminal justice system also becomes unpredictable because a sentence or a charge given to the defendant will now depend on the ability of the defendant to bargain and thus undermining the rights of those who are not able to bargain (Fisher, 2006).

In conclusion therefore, plea bargaining may seem an expedient way to pursue justice, however, the demerits of the process, far out way the possible advantage. A complete reform of the justice system is required that would ensure as a matter of urgency, to first of all ensure that access to justice is affordable for all, so that the innocent are not compelled to settle for bargains due to the fact that they are not able to afford qualified lawyers. Secondly there should be a redefinition for the threshold required for murder to be murder and not manslaughter and the sentences available. This will reduce the powers of prosecutors and judges so as they do not fundamentally alter likely sentences after during the process of plea-bargaining.


Gorr, M. (2007). The morality of plea bargaining. Social Theory and Practice, 26(1), 129-151.

Lippke, R. L. (2006). Retributivism and plea bargaining. Criminal Justice Ethics, 25(2), 3-16. Benner, L. A. (2012). Expanding the right to effective counsel at plea bargaining. Criminal         Justice, 27(3), 4-11.

Fisher, G. (2006). Plea bargaining’s triumph. The Yale Law Journal, 109(5), 857-1086.

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