Thinking Citizen Blog — Plea-Bargaining Re-Visited — the Truth about the Criminal Justice System

Thinking Citizen Blog — Saturday is Justice, Freedom, Law, and Values Day

Today’s Topic: Plea-Bargaining Re-Visited — the Truth about the Criminal Justice System

To the average American the criminal justice system is all about judges and juries making tough decisions. The reality is very different: “19 out of every 20 criminal cases are resolved through plea bargaining. Instead of having a jury evaluate guilt or innocence, the defendant enters a plea of guilty at a pretrial hearing, almost always in exchange for a plea bargain that drops some of charges, reduces the sentence or both.” Today a few more notes from a lecture on criminal justice by Professor Joseph Hoffmann of Indiana Law School. Experts — please chime in. Correct, elaborate, elucidate.


1. “It’s incredibly efficient.”

2. “In addition, most lawyers and judges -including most prosecutors think that many of the punishments enacted by legislatures are too harsh. Indeed, there is plenty of evidence to suggest that legislatures sometimes deliberately enact overly harsh punishments knowing full well that prosecutors and judges will exercise their discretion and reach more reasonable outcomes through plea bargaining.”

3. “Public opinion, on the other hand, is strongly against plea bargaining. Many people see the process as a way of “going easy” on the defendant and they don’t like it.”

NB: The bottom line: plea bargaining “isn’t some adjunct to the criminal justice system; is the criminal justice system.”


1. In the 19th century, legislatures began taking away judicial discretion by passing mandatory sentencing laws which had the effect of moving true decision-making to prosecutors who controlled the sentences received by defendants, “by the simple expedient of deciding which crime to charge.”

2. Also judges in the late 19th century became “swamped on the civil side of the docket” as the result of the “Industrial revolution and the proliferation of modern technologies like railroads and streetcars, both of which generated a huge number of personal lawsuits.”


1. “Because lawyers and judges tend to see criminal trials as a waste of resources, and that’s even true if you have plenty of resources to waste. After all, even rich people don’t want to burn their money, right?”

2. “The defendant knows he’s guilty, the defense lawyer knows it, and the judge knows it. So why not just settle and save everybody the time and hassle of a trial?”

3. Unfortunate consequence: “Almost all criminal defense lawyers come to believe that almost all of their clients are guilty, simply because in the end, almost all of them plead guilty…Which can make life really difficult for the rare defendant who really is innocent but who can’t get his own lawyer to take his claim seriously.

NB: But is plea bargaining constitutional? Does it violate the defendant’s right to a jury trial? is it a form of coercion? These issues were settled in two landmark cases: Brady v US (1970) and Bordenkircher v Hayes (1978). Result: plea bargaining is constitutional.

FOOTNOTE “The Alford Plea” — ok to plead guilty while protesting one’s actual innocence! An apparent anomaly….

1. In a 6 to 3 decision in 1970, the Supreme Court “affirmed that there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty while still protesting his innocence under duress as a detainee status.”

2. A variation on the “nolo contendere” plea “in which the defendant agrees to being sentenced for the crime, but does not admit guilt.”

3. Hoffmann commentary: “it seems like a particularly bad idea, because it basically deprives the entire criminal justice process of its moral significance… Defendants who enter an Alford plea whould seem to be particularly poor candidates for reform or rehabilitation.”

NB: So why such a seemingly insane decision? “It’s because in America we place a high value on personal autonomy, and the Court believes a criminal defendant who thinks it’s in his best interests should have the right to plead guilty even if he can’t or won’t acknowledge his factual guilt.”

North Carolina v. Alford — Wikipedia

For the last four years of posts organized by theme:

PDF with headlines — Google Drive

Two special attachments below:

#1 A graphic guide to justice (9 metaphors on one page).

#2 “39 Songs, Prayers, and Poems: the Keys to the Hearts of Seven Billion People” — Adams House Senior Common Room Presentation, 11/17/20


Please share the coolest thing you learned in the last week related to justice, freedom, the law or basic values. Or the coolest, most important thing you learned in your life related to justice, freedom, the law, or basic values. Or just some random justice-related fact that blew you away.

This is your chance to make some one’s day. Or to cement in your mind something that you might otherwise forget. Or to think more deeply about something dear to your heart.



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