Plea Bargaining and the Legislative Response

Plea bargaining in the United States has been an issue of debate for years. Opponents argue that it unfairly coerces defendants into pleading guilty and undermines the rule of law. Supporters cite plea bargaining as a contract-like agreement between two parties which yields efficient results. These viewpoints tend to focus on plea bargaining primarily in the individual context, as a one-shot negotiation between a prosecutor and a defendant under the existing criminal law. This approach understates the importance of American plea bargaining as a system of policy making in the United States. A simple two party contract framework fails to account for the movement of the criminal law as a whole, which we envision as a response to omnipresent plea bargaining. With plea bargaining in over 90% of cases, simply increasing the amount and severity of crimes on the books will yield the same punitive outcome, but become increasingly disconnected to reality, legality, or good policy. Unbridled prosecutorial discretion glosses over the cost of overcriminalization, mitigating the full effect of the criminal law and undermining legislative accountability. When unpalatable results are reached by enforcement of this system, we may question prosecutorial decisions rather than address the underlying statutes that create unreasonable results. With unfettered bargaining as the new de-facto criminal policy in the United States, political and private actors can and will account for this shift by adjusting their own actions and perceptions. This means that the American form of plea bargaining cannot provide a long term fix for the very problems believed to necessitate its existence, but only push the criminal law into increasingly flawed directions and then try to correct to the status quo ante. It is a feedback loop, which may only impede the development of sound and sustainable rules of criminal procedure and criminal policy