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Plea bargaining is overly common in the United States legal system, accounting for some roughly 90% of the criminal cases in the country. It is a prominent feature in the criminal justice system because the country is characterized by an adversarial system of justice as opposed to an inquisitorial one. In either criminal or civil litigations, the opposing parties to a case have to present their dispute to a neutral party who is either a judge or a jury. In the criminal cases, the parties involved include the prosecutor, who represents the government, and the accused, who is represented by a private counsel, or if an indigent has a private attorney or a public defendant, who is publicly compensated, provided for them. Understanding of the criminal justice system and the parties involved therein is critical in laying the foundation for getting to comprehend the practice of plea bargaining.

The method has been known to exist since the 1800s and it is a shaping characteristic of the federal criminal justice system, although it has been very controversial. Because of the position it occupies in the criminal justice system, plea bargaining has elicited a great debate since while some view it as offering practical benefits, it is still acknowledged that it is an imperfect method of dispensing justice. Therefore, to ascertain it fairness and necessity, one must critically look at both sides.

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As pointed out earlier, the U.S criminal justice system is characterized by an adversarial system that is defined by jury trial. To have a clear understanding of plea bargaining practice, it is important to understand that both jury trial and plea bargaining are linked. Criminal prosecutions, which are what brings about the probability of plea bargains, evolve around the notion of a trial, which is the main event in these prosecutions. The complexity of conducting trials is what propels the great support for plea bargaining. There is a need to understand the trial process and its complexities. The first step is by looking at a jury because it is a very critical component of a trial process that makes it complicated. The purpose and importance of the jury are not important in understanding the drive towards to plea agreement but rather the contemporary procedural requirements to have one. The fact is, to have a jury set up is very cumbersome and very costly both at an institutional and societal level.

Supporting Arguments for Plea Bargaining

Procedural requirements in selecting a jury demand that the jury is one’s peers and impartial. The idea of finding such a jury can be a real procedural quagmire. The duty to become a juror, even a civic one, is onerous and time-consuming, and as a result, many of the residents called forth as potential jurors look for the ways to escape performing this duty. Thus, instead of looking for the required number of twelve jurors, the officials are forced to have alternates in case anything goes wrong. The nature of the case, its seriousness, complexity, its length or sensitivity, and jury selection, especially for serious crimes, could take weeks or even months. Looking at all the issues, one can see how time-consuming jury selection can be, which leads to the evasion of having a trial and opting for plea bargaining.

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Other than that, there is also the assembling of the relevant actors in a trial proceeding –  the defendant(s), witnesses, judge court staff, and lawyers. Having the jurors as the finders of fact means that everything must be done once because reconvening them is an administrative nightmare, if it is not be considered an impossibility. The bailiffs or sheriffs have to bring the defendants to court and ensure that the court is secure at all times, whereas court reporters and clerks have to record all activities in the courtroom. The judges, on the other hand, have to preside, while the lawyers also have to be present to represent their clients. In many criminal cases in the country, the defense counsel is appointed by the courts, which is around 75% of the cases. The defense counsel appointed by the courts is compensated from the government funds. Further, there are costs outside of the court system, where the citizens that serve on juries miss work and they still have to be paid. Those that are self-employed suffer the most, while the employers too have to bear the cost of not having an employee at work but still, they must pay for their absenteeism. Many of the citizens suffer inconveniences coming to court other than actually serving, and that is not to mention the difficulties experienced by the witnesses. Therefore, the above-mentioned costs prompt many to support the practice of plea bargaining.  

There is also another non-economic cost of a trial that is considered by proponents, and that is the emotional toll that has to be borne by lawyers, defendants, and witnesses. Trials have always been deemed nerve-wracking affairs, especially in the sensitive cases like rape. The emotions surrounding some of the cases are a complicated matter, and they are never an easy thing to handle for any of the actors in the trial process.

Furthermore, the proponents support that plea bargaining is not only necessary for the efficiencies that it brings to the judicial system but that it also helps prosecutors get more on their cases. Plea bargaining can be used by the prosecutors where they have the defendants promise to cooperate as witnesses in either a related or unrelated case. In such instances, the prosecutor guarantees the defendant for a lesser charge or that they will offer a favorable recommendation from the judge. The benefit of plea bargaining in this form is that the prosecutor can obtain information that will help them prosecute either a co-defendant or multiple defendants that have a relation to a given crime or crimes.

Criticism of the Plea Bargaining Practice

Many of those who criticize the practice of plea bargaining point out the unfettered discretion given to the prosecutor. The kind of discretion accorded to them is more than that granted to the judges because the judges have to hold on to concise sentencing guidelines. Sometimes, the prosecutors have been known to coerce the defendants into accepting pleas when they seek to secure a conviction, even when the evidence that they have for a case is minimal. Prosecutors also have a wide latitude in that they have the ability to reduce charges for offenders, a fact that brings forth prosecutorial biases in the plea bargaining process (Burke, 2007). The discretion also extends further to those that opt to go for trial because prosecutors can press for harsher punishments. The fact that the prosecutors can employ probable cause, which is a standard lower than that of having to prove beyond a reasonable doubt, means that they can press for more serious charges on a defendant without actually believing that the charges are provable beyond a reasonable doubt during a trial. Furthermore, prosecutors are evaluated on their conviction rates; thus, they are forced to win at all costs, which lead to some coercing their defendants to plead guilty. The urge to win would deprive the defendant the right to procedural safeguards and a full investigation if they chose to have a trial.

Other critics point out to the fear of innocent defendants pleading guilty just because they do not want to risk going to trial. Both defense attorneys and prosecutors present defendants with the risk that one can entangle themselves with if they do choose to go to trial. It is often difficult to know the outcome of a trail since it is uncertain what the verdict of jurors could be. Presenting the facts that this might happen to the defendants sees them avoid going to trial to risk being convicted or even serve a severe sentence.

There are the victims involved in a case and for them, plea bargaining does not offer the justice that is sought after in the judicial system. Many of the victims see it a way of letting the guilty get off a crime so easily or not suffer the full consequence of the law. Victims do not understand the idea of how one who is guilty of an offense can receive a lesser punishment while in fact, they have already pleaded guilty of the crime. Plea bargains happen behind closed doors, with the prosecutors and defendants, who are represented by their attorneys, coming to an agreement without the presence of the victim who has suffered from the crime. To the victims, this appears as an irrational process that is unfair and highly secretive, where the criminal justice system is prone to manipulation, and it compromises the fundamental principles of justice.

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Those opposed to the plea bargain practice also point out that the practice is inadequate in ensuring that there is a distinction of the guilty from the innocent. The opponents argue that defendants would be better off without the practice because it would mean that cases would be processed more impartially. The critiques believe that the budget available to prosecutors would only allow those cases with substantial evidence to proceed to trial, the result of which would be to eliminate the coercion of innocent defendants as well as leniency for those that have a record of violence and chronic offenses.


Plea bargaining is the other side of a jury trial system because the system has taken a complex form of the contemporary legal system of the country. The origins of plea bargaining have a connection with the adversarial form of criminal justice system in the USA. With the complexities of the current judicial system, which seem to focus more on the cost-effectiveness of the system, it is much unlikely that plea bargaining is going to be abandoned. If all of the above sentiments were to be held constant, the issue of ethics in utilizing plea bargaining proves that it is not a fair system of administering justice because it can be argued that only those who are guilty would admit to it in the first place. If the current judicial system believes in the intelligence and impartiality of a jury to deliver justice, then not allowing a case to go to trial means that the very essence of achieving justice is curtailed, if indeed plea bargaining is practiced. Although many support the practice, the reason for such a support is only centered majorly on the cost efficiencies and uncertainties of trial. However, if justice is the proper administration of the law in an equitable and fair manner, plea bargaining does not deliver justice in the criminal justice system.