Consequences of Plea Bargaining: In Consideration of the Rights of the Accused

As Americans currently look to reform the nation’s criminal justice system, with its high incarceration rates and immense racial disparities, plea bargaining is an important consideration. In a plea bargain, also known as a plea deal, the defendant agrees to plead guilty or “no contest,” in exchange for the prosecutor to drop one or more charges, reduce a charge to a less serious offense, or recommend to the judge a specific sentence that is acceptable to the defense. In turn, this allows the defendant to receive a reduced sentence. [1] A plea bargain is a facet of the American criminal justice system that initially became commonplace in the 1920s in order to expedite the trial court process. The prevalence of plea bargaining is constantly being reexamined as the United States reconciles constitutional principles and legal precedent with historic prejudices in its criminal justice system. 

Plea bargains appear to be a useful tool in reducing sentencing and a first step towards retribution and rehabilitation, but the manner in which plea bargaining has been leveraged by prosecutors and defended by the highest courts has put the rights of suspects in a precarious position. Suspects are often coerced into taking pleas, or conversely, not made aware of the option to take a plea by their lawyer. Furthermore, there is evidence of racial bias in plea deals, as it has been found that the disparity in outcomes between African-American and white suspects emerges in cases where the defendant had no criminal history; their race is often used by prosecutors as a substitute for their prospects of re-offending, which often results in longer sentences for non-white suspects. [2] In the present day, an oversaturation of criminal case dockets has led to an unbalanced criminal justice system, in which coercive plea bargains are often used to rush through or completely avoid standard court proceedings. [3] In light of striking inconsistencies between the practice of plea bargains and the Fourteenth, Sixth, and Fifth Amendment rights of the accused, any constitutional justification of plea bargaining falls short.

Debates on the constitutionality of plea bargaining are centered on the Fourteenth Amendment’s right to due process, the Sixth Amendment's right to a fair trial, and the Fifth Amendment's right against self-incrimination. [4] Constitutional justifications of plea bargains have emphasized that the defendant voluntarily takes the plea, thereby ensuring that their Fourteenth, Sixth, and Fifth Amendment rights are upheld. However, these arguments ignore the fact that the Supreme Court has held that the due process clause of the Fourteenth Amendment protects againsts practices that fundamentally infringe upon the principles of fairness, even if they are not explicitly included in the Constitution’s Bill of Rights. [5] Fundamentally, the concept of plea bargains does away with these precepts of fairness, as it presumes guilt, allowing the accused to make a deal before their case can be fully adjudicated in a full trial. This is in tension with the Fifth Amendment protection against self-incrimination, and completely debases the notion of “innocence until guilt is proven,” outlined in the Sixth Amendment. A plea bargain prevents a fair trial from naturally running its course, enabling the prosecution to play the judge, jury, and executioner all at once.

The option of plea bargaining leaves room for the Fifth and Sixth Amendment rights of the accused to be curtailed—inadvertently, or even purposefully—by both the prosecution and the defense, as was the case in United States v. Jackson (1968). The defendant, Charles Jackson, had been sentenced to death under the 1932 Federal Kidnapping Act because of his involvement in the transportation of a hostage from Connecticut to New Jersey. The act stipulated that anyone who knowingly transported an unlawfully kidnapped person, held them for ransom, and returned them harmed or injured, would be put to death at the recommendation of a jury if found guilty in a criminal trial. [6] However, if the defendant pled guilty––thereby avoiding a criminal trial altogether––they would not face the death sentence under the act, because there would be no chance for the jury to make a recommendation. 

In October 1966, a federal grand jury in Connecticut indicted Jackson under the act. Subsequently, the District Court for the District of Connecticut rejected this count of the indictment, arguing the Act was unconstitutional: the accused person’s natural aversion to death is likely to compel them to take a plea bargain, even if they are innocent. In a 6-2 decision, the Supreme Court affirmed this part of the District Court’s decision, noting that this provision of the Act violated the Fifth Amendment right to not incriminate oneself and Sixth Amendment right to demand a jury trial. [7] 

The precedent from Jackson was called into question in Brady v. United States (1970), which further examined the relationship between plea bargaining and defendants’ Fifth and Sixth Amendment rights. The defendant, Robert M. Brady, initially pleaded not guilty to the charge of kidnapping under the now-modified Federal Kidnapping Act. [9] Upon learning that his co-defendant had confessed to the crime and could now testify against him, Brady decided to plead guilty. Although the maximum sentence for this crime was the death penalty, the jury did not recommend it, so Brady was sentenced to 50 years in prison, which was later reduced to 30 years. After his conviction, Brady challenged the guilty plea he took after his co-defendant’s confession, arguing that it was involuntary because he only entered it in an attempt to avoid the death penalty. [10] 

This U.S. District Court denied redress and the U.S. Court of Appeals for the 10th Circuit affirmed this sentence, arguing that Brady changed his plea because of his co-defendant’s admission, not the threat of a death penalty, making the use of plea bargains in his context consistent with the precedent from Jackson. [11] Brady went on to seek recourse in the U.S. District Court for the District of New Mexico, where he claimed his plea was not voluntary because knowing that he could be sentenced to death, after his co-defendant had confessed, coerced this change. The District Court, affirmed by the 10th Circuit Court of Appeals, rejected his claim, finding that he indeed did change his actions as a direct result of his co-defendant’s confession, not the threat of the death penalty that had existed in Jackson. [12] 

Brady v. United States thus raised a compelling question, which had the potential to curtail the use of plea bargains: what constitutes “unconstitutional coercion” when a plea bargain is used? The Supreme Court unanimously affirmed the decision of the lower courts on this matter. The “presence of counsel” provides “adequate” protection against coercion, ensuring that defendants’ Fifth Amendment rights are upheld during police interrogation practices, and specifically that their decision on whether to take a plea is voluntary. [13]

The Brady majority seriously undermined the extent to which the Jackson precedent curtails the use of plea bargains. In the process, the Court issued a judgement that is arguably at odds with the Jackson decision, underscoring the constitutional problems with using plea bargains. The contexts of Brady and Jackson shared a fundamental commonality: both defendants were attempting to avoid the death penalty. Although the threat was more direct for Charles Jackson than for Robert Brady, there was still a very real possibility of death by the state for both of them, and accepting a plea bargain was the only way for either defendant to eliminate this threat. The difference in the Court’s decisions for these two cases indicates a fluctuating position on whether the threat of the death penalty is itself a form of coercion, for it was mindful of the threat’s impact in Jackson, but failed to extend this principle two years later in Brady. Ultimately, the Brady decision constructed a misleading narrative of the role of counsel in ensuring voluntary admission, erasing the coercive elements in Brady’s plea bargain. The inconsistencies between these two cases have troubling implications for defendants’ Fifth and Sixth Amendment rights, as they allow contextual technicalities to infringe on the fundamental rights of the accused, rationalizing abuses of power within the criminal justice system. 

Beyond these Fifth and Sixth Amendment challenges, the issue of plea bargains has also emerged in relation to the Fourteenth Amendment’s due process clause. This was at the center of the 1978 Supreme Court case Bordenkircher v. Hayes, which raised the question of whether prosecutorial coercion to take a plea bargain violates the accused’s right to due process. Paul Lewis Hayes was charged with forgery, a crime which, in the state of Kentucky, warrants a two- to ten-year sentence. The prosecutor offered Hayes a five-year sentence in return for a guilty plea, promising to indict Hayes under the Kentucky Habitual Crime Act if Hayes did not take the plea. [14] As Hayes already had two prior felony convictions, he would be sentenced to a life in prison if he was found guilty under the Habitual Crime Act. Ultimately, Hayes decided not to plead guilty, and the prosecutor proceeded as they said they would, indicting Hayes under the Habitual Crime Act. Hayes presented the constitutional objection under the due process clause of the Fourteenth Amendment to the Kentucky Court of Appeals, arguing that he should not have received an increased sentence solely because he did not accept the plea bargain recommendations of the prosecutor. [15]

When brought to the Supreme Court, Bordernkircher raised the question of whether the prosecutor’s threat of the possibility of life in prison, if the defendant did not take their plea bargain, was unconstitutional. In a 5-4 decision, a sharply divided Supreme Court found that the due process rights of the defendant were not violated. In the majority opinion, Justice Potter Stewart noted that the use of plea bargains had been accepted by the Supreme Court in previous cases such as Brady v. United States (1970) and Blackledge v. Allison (1978), ruling out the possibility that plea bargains were inherently unconstitutional under Fifth, Sixth, and Fourteenth Amendment rights. [16] Turning to Bordenkircher’s context, he argued that a prosecutor’s interest in persuading the defendant to waive their right to plead not guilty is “constitutionally legitimate.” “Threatening a stiffer sentence is permissible and part of any legitimate system which tolerates and encourages the negotiation of pleas,” he concluded. [17]

The premise of this argument raises the question of whether a legitimate criminal justice system which allows plea bargains can even exist, or if those two concepts are mutually exclusive. Justice Stewart and the Bordenkircher majority failed to consider that the vindictive nature of the prosecutor’s persuasion of Paul Lewis Hayes was inherently at odds with Hayes’ Fourteenth Amendment right to due process. The central purpose of due process— to protect civilians from government abuses of power—was imperiled by the prosecutor’s threats to compel Hayes to accept the plea bargain. By describing the prosecutors’ actions as “no more than openly present[ing] the defendant with the unpleasant alternatives,” the Court erased the abuse of power that had taken place to conclude that Bordenkircher “did not violate” due process. [18] 

In his dissenting opinion, Justice Lewis F. Powell Jr. found that, in this case, the prosecutor had acted for their own gain, when plea bargains are supposed to be for the benefit of society as a whole and for the defendant. Furthermore, Justice Powell argued that the treatment of Hayes was inherently unconstitutional given the prosecutor’s admission that they threatened a harsher indictment to discourage Hayes from exercising his constitutional right to a trial. “Conduct of the plea bargaining,” per Justice Powell, was only functional when used without intention to abuse, which had not been the case in Bordenkircher. [19] Justice Harry Blackmun echoed Justice Powell’s criticisms of the Bordenkircher majority in his own dissent, finding the prosecutor’s admission that he sought to coerce Hayes to plead guilty to be deeply concerning. This revealed “prosecutorial vindictiveness,” Justice Blackmun argued, as the prosecutor was aware that Hayes would face life in prison if he did not accept the plea. “The Due Process Clause should protect an accused against” such vindictiveness, he concluded. [20] If plea bargaining enabled the prosecutor’s vindictiveness to interfere with the defendant’s right to due process, then it had to be in tension with Fourteenth Amendment guarantees.

When taken together, Justice Blackmun and Justice Powell’s dissents speak to the unbalanced benefit that plea bargaining offers the prosecutor, creating a dynamic in the criminal justice system that fundamentally disadvantages the defense. This imbalance places the accused’s right to due process under the Fourteenth Amendment in a precarious position whenever plea bargains are invoked in practice, suggesting that the majority’s notion of a “legitimate system which tolerates and encourages pleas” may be an idealization; perhaps such a system cannot exist legitimately at all. [21] By failing to consider the prosecutor’s vindictiveness, and this fundamental power imbalance, the Bordenkircher majority set a dangerous precedent. In the wake of this decision, prosecutors are empowered to deny the constitutional rights of the accused in order to avoid a trial, going so far as to consistently use previous criminal history against defendants as Hayes’ prosecutor had done. 

These landmark Supreme Court decisions from the 1960s and 1970s reveal a dissonance between plea bargains in theory and in practice. The Court majority’s curtailing of the rights of the accused has emboldened prosecutors to employ threatening techniques and bully tactics through plea bargaining that continue to this day. By nature, plea bargains erode the foundation of the Fifth and Sixth Amendment by preventing the judicial process from fully taking its course, as seen in United States v. Jackson and Brady v. United States. Furthermore, this facet of the criminal justice system, although highly useful in theory, thwarts the accused’s right to due process under the Fourteenth Amendment by allowing prosecutors to leverage their power and intimidate the accused, as seen in Bordenkircher. Indeed, in Bordenkircher, it became clear that the courts would allow the incrimination of defendants with past criminal histories at the hands of prosecutors, effectively voiding the Sixth Amendment right to be considered of “innocent until proven guilty,” and stripping the defendant of their Fourteenth Amendment claim to due process. 

The U.S. legal system must seriously consider the disconnect between theory and practice of plea bargaining in the criminal justice system, and the tensions between the concept of plea bargaining and defendants’ constitutional rights. Upon this review, as an examination of the Jackson, Brady, and Bordenkircher decisions would suggest, the legitimacy of any system that uses plea bargaining is fundamentally called into question. Cases concerning plea bargaining should be retroactively revisited by the courts and scholars to determine a pathway for a more efficient criminal justice system in the United States.

Edited by Mrinalini Sisodia Wadhwa

Sources: 

[1] Cornell Law, “Plea Bargain,” Legal Information Institute. Visited April 7, 2021. https://www.law.cornell.edu/wex/plea_bargain.

[2] Equal Justice Institute, “Research Finds Evidence of Racial Bias in Pleas,” October 2017. Visited April 7, 2021. https://eji.org/news/research-finds-racial-disparities-in-plea-deals/.

[3] HG.org Legal Resources, “History of Plea Bargains.” Visited April 7, 2021. https://www.hg.org/legal-articles/history-of-plea-bargains-40219.

[4] U.S. Const. amend. V; U.S. Const. amend. VI.

[5] Cornell Law, “Procedural Due Process - Criminal,” Legal Information Institute. Visited April 7, 2021. https://www.law.cornell.edu/constitution-conan/amendment-14/section-1/procedural-due-process-criminal.

[6] Duke Law Scholarship, “The Lindbergh Law.” Visited April 7, 2021. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1726&context=lcp.

[7] United States v. Jackson, 390 U.S. 570 (1968). https://supreme.justia.com/cases/federal/us/390/570/.

[8] Ibid.

[9] Ibid at 6.

[10] Brady v. United States, 397 U.S. 742 (1970). https://supreme.justia.com/cases/federal/us/397/742/.

[11] Ibid at 10.

[12] Ibid at 10.

[13] Brady v. United States, 397 U.S. 742 (1970). https://supreme.justia.com/cases/federal/us/397/742/

[14] Bordenkircher v. Hayes, 434 U.S. 357 (1978). https://supreme.justia.com/cases/federal/us/434/357/.

[15] Ibid.

[16] Bordenkircher v. Hayes, 434 U.S. 357 (1978). https://supreme.justia.com/cases/federal/us/434/357/.

[17] Ibid at 14.

[18] Ibid at 16.

[19] Ibid at 16.

[20] Ibid at 16.

[21] Ibid at 16.