An Offer You Can’t Refuse: The problem with plea bargains in our modern criminal justice system.



Very few people convicted of crimes actually go to trial, as evidenced by 97% of federal and 95% of state cases being solved by plea deals (Dervan and Edkins). A plea bargain is when a defendant agrees to plead guilty to a crime in exchange for a reduction to the sentence. The problem with this widespread use of plea bargains is that it results in prosecutors giving innocent defendants offers that are so good that it entices them to waive their 6th amendment right to a trial and accept a guilty plea. People of low socio-economic status and single parents are very susceptible to this, as they can’t afford to post bail nor take the time and risk associated with a trial that could result in them being away from their child for an extended period of time. Defendants feeling that they have no other option but accepting a guilty plea puts numerous innocent people in jail and undermines a key value of our criminal justice system: that a defendant is innocent until proven guilty.

I describe the true story of Rodney Roberts, an innocent defendant who accepted a plea bargain.

My interest

I have always been interested in the injustice of a defendant being convicted of a crime that they did not commit. As early as fifth grade I started getting involved in this topic, as I did a project in which I discussed innocent people going to jail and even interviewed one of the coordinators at the Northern California Innocence Project in Santa Clara. When I heard the statistic about how the majority of cases are solved by guilty pleas, I realized that it was within the system of plea bargaining where the true innocence problem lies. For more information on the initial process of me choosing my topic and finding preliminary research click here to read my personal interest essay.

The rise of plea bargains

Until the start of the 20th-century plea bargains were a very underutilized practice because there was no real need for them, as the number of court cases had not gotten very high yet. However, in the late 19th century and early 20th century there was a surge in the number of court cases. For example, in Boston between 1880 and 1900, the number of civil suits filed increased from 120 to 3300 (Mnookin). The illegality of selling alcohol in the United States caused by the passage of the 18th amendment in 1919, created even more court cases. This spike in the number of court cases caused a necessity for a quick and efficient system to deal with the exponentially increasing caseloads. This system turned out to be plea bargains. This rise in the number of plea bargains being a direct result of increasing caseloads is evidenced by how in 1908 only 50% of all convictions in federal courts were by guilty pleas,  whereas by 1916 this number increased to 72%, and by 1925 it was up to 90% (Dervan and Edkins).

A visual depiction of the exponential growth rate in trial court caseloads (Federal Judicial Center).

Even though prosecutors using plea bargains to manage caseloads was becoming a widespread practice, appellate courts were still very reluctant to accept the system up until the 1970s. One example of this comes from the court case Walker v. Johnston in 1936, in which Jack Walker was charged with armed robbery. Although Walker agreed to plead guilty in exchange for a lesser sentence, The United States Supreme Court found the bargain constitutionally impermissible, since the threats and inducements made Walker’s plea involuntary (Dervan and Edkins).

By the 1970s there were so many cases that appellate courts were forced to accept the system. During the 20th century, criminal caseloads would commonly double each decade, while judicial resources barely increased. Furthermore, the crime wave in the 1960s caused another huge swell in caseloads. As such it became necessary for appellate courts to accept the system of plea bargains, which they did in 1970 with the case Brady vs. the United States supreme court. In the case Brady wanted his guilty plea removed. The court decided that “A plea of guilty,…must stand unless induced by threats, misrepresentation (including unfulfilled or unfulfillable promises), or… promises that are by their nature improper… (e.g. bribes)” (Dervan and Edkins). This case essentially legalized plea bargains and allowed them to exist as the overused system they are today. For a more in-depth review on the history of plea bargains click here to see my Background research essay.

This graph gives a visual representation of how few court cases actually go to trial (Jost)

The Current Problem with Plea Bargains

The current problem with plea bargains is that the lack of limits and oversight during the bargaining process along with mandatory minimums resulting in very harsh sentences if a defendant loses at trial allows prosecutors to abuse the system, resulting in many innocent defendants pleading guilty, as prosecutors offer them deals they can’t refuse.

Both the lack of restrictions and the discretion prosecutors have during the bargaining process gives them a lot of leverage when negotiating plea deals. During the plea process, the only real restriction prosecutors have is that they can not use illegal threats to secure a plea.  Furthermore, judges are generally not allowed to take part in the plea process, and written records of the deal are very rarely required (Walsh). Judges also can not restrict what charges the prosecutors bring, what threats or promises they make, or if they carry out said threats or promises (“An Offer You Can’t Refuse”). This lack of oversight and limitations allows prosecutors to use every tool at their disposal when attempting to secure a guilty plea.

Mandatory Minimums give prosecutors even more power when imposing plea bargains, as they can threaten defendants with extremely large sentences if they refuse a plea deal. Prosecutors have the power to choose if they will pursue increased penalties against eligible defendants and if they do judges must enforce these sentences if the defendant is convicted. One such penalty comes from previous felony convictions. If a prosecutor chooses to file a prior felony conviction, the defendant’s sentence is doubled, and a second prior conviction will result in a mandatory sentence of life without parole if the defendant has a mandatory minimum sentence of 10 or more years on the current sentence (Human Rights Watch).

This graph gives a visual representation of how many extra years in prison you risk by going to trial and how few defendants actually chose to go to trial (“An Offer You Can’t Refuse”).

Prosecutors will generally hold true to their promises of seeking out the maximum sentence possible, resulting in a very genuine fear toward the consequences of going to trial. A 2013 study done by the Human Rights Watch showed that defendants who went to trial and were convicted of drug offenses with mandatory minimums received sentences on average 11 years longer than those who plead guilty. This excessive sentencing if a defendant goes to trial can be seen by the experience of Patricio Paladin, who was accused of cocaine distribution in 2010. He was offered a plea deal for a 20-year sentence but instead chose to go to trial. He lost and since this was his third drug conviction, he is currently serving a sentence of life without parole (“An offer you can’t refuse”).

The ability of prosecutors to impose very harsh sentences if a defendant does not accept a plea deal is often times enough to motivate an innocent defendant to plead guilty. A study was conducted in 2011 to get a better estimate of how many innocent defendants plead guilty. More details on the studies specifics can be found here in my essay on the current problem but in sum 86 college students participated in what they believed to be a psychological study on individual versus group problem-solving. While solving a problem with their partner half of the students are tricked into cheating. Once they have completed the problem all the students are accused of cheating even though only half of them actually did. They are then told they will get a lesser punishment by simply admitting that they did not cheat, while they are threatened with a much harsher punishment if they are found guilty by the Academic Review Board, essentially a jury. Furthermore, half are threatened with a very harsh punishment if found guilty by the Academic Review Board while the other half are threatened with a more lenient sentence if found guilty by the Academic Review Board.

Visual depiction of the results of the study (Dervan and Vanessa)

As seen by this chart in the study, 89.2% of guilty students and 56.4% of innocent students agreed to plead guilty. Furthermore, in the harsh sentencing scenario, 61.1% of innocent defendants plead guilty, while in the lenient sentencing scenario 52.4% of innocent defendants still plead guilty (Dervan and Vanessa). Over half of the innocent students plead guilty when faced with a small punishment, demonstrating how irresistible a plea bargain would be to an innocent defendant when the difference is between 20 years in prison or life without parole.

Watch this video to see a real-life example of an innocent defendant accepting a guilty plea.

How to end plea bargaining’s Innocence Problem

The solution to innocent defendants accepting plea bargains comes from reforming two systems: plea bargaining itself and trials. In terms of reforming the plea bargain system one change that would help end the abuse of plea bargains is creating a federal law that requires prosecutors to reveal all evidence they have against the defendant before the plea negotiation begins, allowing a defendant to make an informed decision on taking a plea deal or taking their chance at trial (Walsh). Another reform would be federally restricting a prosecutor to only be able to give a defendant a maximum of a two-level reduction to the offense level. This would cause more innocent defendants to go to trial since they will likely feel it’s not worth it to plead guilty for such a minimal sentence reduction (Bar-Gill and Ayal). Lastly, to reduce the chances of an innocent defendant being threatened with a very long sentence with or without a plea bargain due to mandatory minimums, judges should be able to drop certain charges that increase the sentence if they don’t believe the defendant deserves them. Knowing that judges have this power will result in more defendants opting out of a plea bargain.

Creating a more efficient trial system would also reduce the number of innocent defendants who plead guilty. The most tried and true method toward doing this is giving a defendant the option of a bench trial or a trial before a judge and no jury, since they offer a quicker alternative to the modern trial system and an alternative to accepting a guilty plea. This has been done in Philidelphia and resulted in only 72% of cases being solved by plea bargains, contrasted to the national average of 97% (Walsh).

As a reader, you may read these solutions and feel like there is nothing you can do. However, there is a lot of work individuals can do to help reduce the number of innocent defendants who plead guilty and mitigate the problem plea bargains cause. For example, supporting programs that help get innocent defendants out of jail is very impactful. A great place to start is the Innocence Network which has a huge list of organizations that help get innocent defendants out of jail. By using this website you will be able to find an organization that resonates with you in your local area. Another thing you can do as a reader is spread awareness about how prosecutor’s abuse of plea bargains is leading to innocent defendants pleading guilty. Sparking conversations and bringing up the issue and possible solutions to local legislators can cause the necessary changes to the system to occur and have the issue be brought to the top of the national agenda. Lastly, when legislation is proposed that could help exonerate innocent defendants or reduce the number of innocent defendants who accept plea bargains you should do everything in your power to support it. Your efforts will undoubtedly cause the necessary legislation to be passed, resulting in fewer innocent defendants being convicted and preserving our core principle of a defendant being innocent until proven guilty. For more information on what can be done to stop defendants from pleading guilty to crimes that they did not commit click here to read my solution essay.

For more information on why Innocent Defendants Plead Guilty watch this Ted Talk

Click here to see my works cited.

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  1. April 27, 2019 by Luis Mendoza Perez

    This is a fantastic presentation! How do you think this can be solved or at least better it? Do you think more public defenders / a smaller workload for each defender would increase the effort put into individual cases?

  2. April 30, 2019 by Kyong Pak

    Great work, Jalen! A well-researched presentation on a relevant and dire issue. Your visuals are compelling and informative, and your TED talk video on the psychology of innocents pleading guilty was illuminating. Thank you for ending with viable next steps for the individual reader – it inspires hope and action in the face of a seemingly insurmountable problem. Well done!

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