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  • Bennett Nuss, Devin Iorio, Siena Roberts

Legal tracking: Plea deals are an unjust bargain

Updated: Oct 18, 2023

The United States criminal court system is generally overwhelmed. According to the United States Sentencing Commission, 57,377 defendants were charged in criminal cases in Federal District Courts in 2021. Depending on the population density of the district they serve, United States prosecutor’s offices can handle as few as 28 cases in a fiscal year (District of the Northern Mariana Islands) or as many as 7,002 (Western District of Texas). These statistics trend even higher in criminal cases handled in state courts. According to the National Center for State Courts, 21 states handled around 18 million cases in a single year. It takes an average of 256 days to fully complete court proceedings for felony defendants and 193 days to complete misdemeanor proceedings.

Because hearing every criminal case that comes before a court would result in an unmanageable caseload for any court, the United States legal system has made increasingly liberal use of plea bargaining: the process by which a prosecutor will offer to pursue a more lenient sentence for a defendant in exchange for a guilty plea.

Plea bargaining has a long history of precedent in both English and American law, expanding into a common institutional practice immediately following the Civil War. The constitutionality of plea bargains was once controversial but has been mostly settled with the Supreme Court’s decision in Brady v. United States, whereby plea bargains are constitutional so long as the plea is voluntary. Following the Brady decision, plea bargaining has been utilized in the United States on an ever-growing basis to the point that 98% of all federal criminal convictions and 95% of all state criminal convictions are currently obtained through plea bargains.

The increasing reliance on plea bargaining has certainly resulted in a great deal of efficiency for the court system; however, there are considerable drawbacks to such a development. Many critics of plea bargaining proliferation say that the choice of whether to plea constitutes an instance of a game theory, in which the defendant then has a series of choices to minimize their legal penalties. In such a game, the defendant can be incentivized to plead guilty to a crime they did not commit simply because the risk of trial outweighs the harms incurred by pleading guilty and receiving a bargain. This dynamic has played out in real life; 18% of persons exonerated for crimes they did not commit engaged in a plea bargain. The dark figure of those in prison needlessly for crimes they did not commit, or those who would have received a lesser sentence if they went to trial, is impossible to know.

It seems to be in the interest of defendants to reduce the profligacy of plea bargaining only to instances in which the defendant’s guilt is beyond doubt and no more. However, when the United States Code increasingly adds more crimes year over year (at a rate of 56.5 per year between 2000-2007), it becomes harder to control the number of cases that come before a court at any one time. Furthermore, there are far more crimes on the books than just in the United States Code, regulatory criminal offenses number in the tens of thousands.

There appears to be a supply and demand problem in plea bargaining; there are far too many cases to be tried in any one year by most jurisdictions, and not enough lawyers and judges to handle all these cases. As is normal for addressing an abundance of demand, the sensible response would be to increase supply.

Increasing the number of lawyers and judges who work in each jurisdiction would do much to alleviate the burden felt by public defenders, prosecutors and judges alike. In one year, a public defender in Lafayette, La., was assigned 194 felony cases; Lafayette has a population of 121,599, according to the World Population Review. Cities like New York are not much better, where the average public defender has well over 100 non-violent felonies cases, with a minimum of 18.8 work hours per case. Improving benefits, salaries, and employment benefits for public attorneys, as well as investing in the United States’ legal infrastructure, can reduce the case burden on individual lawyers and judges, increase case resolution speed and reduce the necessity for plea bargaining.

Plea bargaining is a methodology predicated on expediency rather than promoting due process of law. While there is a legitimate role for the practice, it is clearly overused presently, and only a robust improvement of the material conditions in criminal law can alleviate this problem.


Criminal justice in March:

  1. Washington D.C.’s crime bill: Washington’s crime bill was blocked after 31 Senate Democrats joined Republicans to vote against the proposed legislation. The proposed crime bill would have reduced mandatory minimum sentences, including crimes considered “violent,” such as carjacking. Biden signed the measure to overturn the proposed law, though he initially said he would not. The widespread and sudden Democratic condemnation of the bill is believed to have heavily influenced Biden’s change of heart. Congress has the authority to review all district laws; this is just another instance of Congress blocking legislation voted for by the district’s Council.

  2. Florida Senate Criminal Justice Committee backs death penalty revamp: The Florida Senate Criminal Justice Committee has approved Senate Bill 450. This bill would allow judges to sentence defendants to death without the requirement for a unanimous jury recommendation. This comes after Parkland shooter, Nikolas Cruz, notably did not receive the death penalty. The bill would require judges to sentence a defendant to death if at least 10 jurors recommended the death penalty and allow judges to sentence defendants to death if eight to nine jurors recommended the death penalty. The committee voted 6-2 to approve the bill. The bill was sponsored by State Sen. Blaise Ingoglia (R-Spring Hill). It was opposed by State Sens. Bobby Powell (D-West Palm Beach) and Tina Polsky (D-Boca Raton). Notably, Polsky’s district includes Parkland, Florida. Polsky commented that although she believes Cruz should have received the death penalty, she feels the current bill needs further revision. If Florida passes this bill, it would join Alabama as the only state to allow judges to impose death sentences without a unanimous jury recommendation.

  3. Newly signed Illinois laws include the creation of tourism districts and criminal justice reforms: Gov. Pritzker of Illinois signed 15 total bills into law last month. These bills dealt with issues such as tourism, prison reform and legal name changes for people previously convicted of felonies. House Bill 268 took immediate effect and focused on increasing funds for local tourism projects. House Bill 2542, effective Jan. 1, 2024, allows individuals with past felony convictions to change their names “due to marriage, religious beliefs, status as a victim of trafficking or gender-related identity as defined by the Illinois Human Rights Act.” Individuals must wait until 10 years after their sentence to change their name. House Bill 1064, effective Jan. 1, 2024, makes those sentenced to life in prison before they are 21 years of age eligible for parole after serving at least 40 years of their sentence.

  4. The federal Judiciary seeks $9.1 billion in fiscal year 2024 budget request: The federal Judiciary is seeking an 8% increase over their Fiscal Year (FY) 2023 budget, asking for $9.1 billion in discretionary funding from Congress for FY 2024. The increase is largely going to maintain existing services, add more staff to help with caseload increases and tighten IT security. The Judiciary asked for $156.7 million for its cybersecurity and IT plan. The largest portion of the budget, $6.4 billion, is for salaries and expenses associated with courts nationwide. The Judiciary is also asking for $1.5 billion to go towards defender services, an increase of $150.3 million from FY 2023. The Judiciary also asked for an increase of $33.8 million towards court security, putting its total at $783.5 million. The last major category is jurors’ fees, which saw a requested budget increase of 2.9%, up to $59.9 million. The budget is not yet officially approved.

  5. Criminal justice seems to be a top focus of new laws in Alabama’s 2023 legislative session: Alabama lawmakers appear to be focusing largely on the criminal legal system in the 2023 legislative session. Proposed House Bill 18 would increase the frequency of Department of Corrections Reports to the Prison Oversight Committee from once every quarter to monthly. Sen. Chris Elliot (R-District 32) sponsored Senate Bill 7, which would postpone any early release of inmates. This comes after legislators in 2021 approved a bill that allowed for the early release of certain inmates, corresponding to mandatory supervision and parole to finish their sentence out of jail. If passed, Elliot’s bill would postpone further releases until after January 2030. Proposed House Bill 14 would require juries to come to a unanimous decision to impose the death penalty on a defendant. Currently in Alabama, if 10-12 jurors vote for death, the judge may impose the death penalty. Other proposed bills are related to splitting sentences and parole board release guidelines.

  6. Military justice reforms leave some to be desired: A 2021 bill passed by Congress limited the ability of military commanders to prosecute certain cases. These commanders, who are not trained lawyers, retain substantial control over large parts of the system, including determining whether to confine soldiers ahead of a trial for alleged crimes. Some of these reforms come as welcome changes, but the reforms remain controversial. In December 2022, Congress moved to have sexual harassment, causing the “death or injury of an unborn child” and “mailing obscene matter” (i.e., explicit sexual materials) fall under the purview of military attorneys rather than commanders. Congress also removed the power of commanders to grant immunity to and hire witnesses for trials. Additionally, now all service members will be able to seek judicial review of any convictions, whether they were discharged or not.


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