…But The Problem Isn’t Plea Bargaining.


Earlier this week somebody forwarded me the Economist article on eliminating plea bargaining.  Like most mainstream suggestions on how to “fix” the system I ignored it because… well, because I don’t care what the Economist has to say about criminal law.  I don’t think that’s unreasonable.



It’s popping up in all of my “regular reads” now, so it’s not easy to ignore.  The premise is the ground-breaking idea that prosecutors hold all the cards, the system is unfair, and defendants can be easily intimidated into taking a plea no matter how spurious the government’s evidence is.

Despite the general consensus that the system is royally jacked, the internet is abuzz with common-sense, obvious, “the-devil-you-know-is-better-than-the-devil-you-don’t” solutions.  Scott Greenfield thinks the system can’t handle the justice it really needs:

The government would need 100 times the existing number of courtrooms, judges, clerks, court officers, prosecutors and jury pools. And public defenders would get stretched a wee bit thinner.  Even so, kids would sit in jail for years awaiting trial, turning that one year potential sentencing into three, until it was their turn in the well.


I can’t say I disagree.  I’m not sure I necessarily agree, though. As somebody who, when working as an assistant public defender, once overloaded the system to the point of bursting (by setting every case for trial and then filing an insane amount of speedy trial demands all at once… on a  Friday… late afternoon, of course), I have seen what happens when you force the system to operate outside its comfort zone.

It wasn’t all bad, either.  Oddly, judges faced with having more work than they are capable of handling will put pressure on both prosecutors and defendants, which is certainly abnormal.

Mark Draughn points out something I had not necessarily thought of, though. Perhaps eliminating plea bargaining would increase crime:

The other big problem with eliminating plea bargaining is that lots of crimes would go unpunished. While it seems unlikely that every single one of the 95% who currently take plea bargains are guilty, it is probably even less likely that every single one of them is innocent. Many of them would go on to commit more crimes against the public. Eventually, they would be prosecuted and imprisoned, but in the meantime they could wreak havoc on the innocent. It seems likely that the result would be a lot more crime.


That’s an interesting take.  There’s a lot to bite off in there, and I’m not sure if the net effect of eliminating plea bargaining would be more crime- mostly because I think the current system of charging crimes is completely random and I don’t know that eliminating plea bargaining would eliminate the randomness.

But, I don’t know. Nobody ever knows the unintended consequences of wholesale change before it happens.

That’s not to say I support eliminating plea bargaining.  It is to say that I think eliminating plea bargaining is one of those “solutions” aimed at treating a symptom, and not the root problem.  The root problem is, of course, the gross discrepancies in incentives for each side. A defendant who loses is facing prison or, at a minimum, being branded a criminal and whatever collateral damage that wrecks on his life. A prosecutor who loses is facing maybe getting mentioned by Nancy Grace- but probably not even that.  I wrote about this after the George Zimmerman trial:

Where’s the public outrage against the prosecutor?  Other than some public embarrassment, that office faced zero real incentive to not take that losing case to trial.  Sure, the talking heads can scorn and ridicule now.  You know where a lot of those talking head commentators came from?  They came from prosecutors offices where they worked on major media cases, and later went on to TV. 


Ultimately the public doesn’t hold their elected politician-prosecutor accountable for the quality of his work.  You know what happens when a prosecutor drags a case around for two years by making an unreasonable offer, argues at sentencing for an even higher (the maximum) prison sentence and receives not a day over the minimum at sentencing (which happens to be significantly less than the original offer)?  You know how somebody who’s judgment is so far afield they wasted tremendous public resources gets treated?

They are given awards and called a “hero” that’s how.

I’m with Draughn and Greenfield. Eliminating plea deals is a bad idea. I’m not sure exactly how the system would look if it happened. I just know it does nothing to put any burden on the government to be concerned with the quality of its work.  That’s what really needs to be addressed.

Author: matthaiduk

Matt Haiduk is a criminal defense lawyer in Illinois. He loves his dog. And pizza.

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