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Plea Bargaining - A Necessary Evil?

NCJ Number
University of Arkansas at Little Rock Law Journal Volume: 2 Issue: 2 Dated: (1979) Pages: 381-401
N McDonough
Date Published
21 pages
The positive and negative aspects of the plea bargaining process are explored, and the 1975 amendments to rule 11 of the Federal Rules of Criminal Procedure and their effect on the process is highlighted.
For every person who cites a benefit of the plea bargaining process, there is another who claims an abuse. Since the guilty plea accounts for approximately 95 percent of all criminal convictions in the United States, it is important to consider both aspects of negotiating plea agreements and the impact that such bargaining has on all involved parties. The most obvious benefit is the savings in time and expense to the parties, the court, and the public. In numerous cases the defendant may benefit from the plea bargaining process because he receives a lighter sentence for pleading guilty to a lesser offense. The defendant, his family, and the victim are spared the public trial and accompanying emotional trauma. The prosecutor may benefit as well, as he is burdened with proving guilt beyond a reasonable doubt, a task which is frequently difficult in view of constitutional restraints. Finally, the plea agreement may include a promise by the defendant to testify against a codefendant or to assist the government in the discovery of others engaged in criminal activities. Along with benefits, however, there are abuses in the process, most of which have an adverse impact on the defendant. The process may result in waivers by defendants of their constitutional rights, unequal representation by counsel, the threat of unequal sentencing, and the possibility that guilty pleas will be entered by innocent defendants. The prevalence of plea bargaining abuses in the Federal courts may be curtailed by the amendments to rule 11 which require the judge to develop on the record the factual basis for the plea. In addition, the judge must be assured that the plea was made knowingly and without coercion before he accepts it. Moreover, courts are not required to accept any plea agreements. Various proposals for reform of the plea bargaining system have been made, such as requiring plea screening before an investigative magistrate prior to the actual bargaining session. It is suggested herein that rejection of all plea bargains could result in driving the process back underground. Footnotes are included in the article.