CREATORS
June 17, 2025
Former Supreme Court Justice Anthony M. Kennedy acknowledged
in 2012 — when writing an opinion to establish the right to competent counsel
for defendants negotiating a plea — that plea bargaining "is not some
adjunct to the criminal justice system; it is the criminal justice
system."
In 2022, a little more than 1 in 100 federal defendants and
1 in 20 state defendants went to trial. A significant majority of criminal
cases are resolved by plea bargaining.
A plea bargain is a negotiated agreement between the government
and a person accused of a crime. The accused agrees to accept responsibility in
exchange for reduced charges or a more lenient sentence.
Many of those who choose to plead guilty serve their jail
time before they are sentenced. How can an inmate serve his sentence before he
is determined to be guilty?
The American criminal justice system has prided itself on
the heavy burden placed on the government to prove those accused of a crime
guilty beyond a reasonable doubt — yet very few are actually subject to that
burden.
One of the most significant factors in resolving criminal
cases is poverty. An accused is arrested on a felony. The defendant does not
have the wherewithal to make bond. She sits in jail. The state realizes their
case isn't great — witnesses disappear, evidence is weaker than first thought,
the defendant has an alibi — the prosecutor offers a plea to a lesser charge
and time already served in jail.
The defendant could refuse to plead guilty and go to trial.
That might mean sitting in jail for months while the case is prepared and
scheduled for trial.
Here is what the scales of justice are weighing in many
cases. Liberty right now or further incarceration with the risk of conviction
at trial, along with a harsh sentence.
There seems to be something inherently wrong with locking up
poor people who can't afford a bond and then offering the time they already
served as the penalty. In America, it is not just the poor who negotiate their
way through the system.
Most defendants who pass through the criminal justice system
waive the right to a trial and the panoply of constitutional protections that
come with being charged. Those rights are some of the most fundamental rights
afforded a person by the U.S. Constitution. For one, the right to confront
witnesses. The Sixth Amendment provides that a person accused of a crime can
cross-examine witnesses to determine if they are biased or their memory is
faulty or unclear. A defendant can't do that at a plea hearing.
At trial, a defendant has the Fifth Amendment right to
remain silent. No one can be forced to be a witness against oneself. That right
doesn't exist at a plea hearing. The defendant is often the only witness and
must acknowledge guilt.
A defendant has the right to pick an impartial jury of his
or her peers, but not when pleading guilty. A defendant has the right to a
speedy trial ... that right must be waived to enter a guilty plea.
The defendant may have a basis to challenge a search or
arrest under the protections provided by the Fourth Amendment's prohibition
against unlawful search and seizure. However, if the defendant wants a
favorable plea bargain, those rights must be waived.
For those without the ability to post bail, plea bargaining
is often the only avenue to freedom. Two defendants charged with the same exact
crime in the same jurisdiction — one has money, he can post a monetary bond and
walk the streets until trial, just like any law-abiding citizen.
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner's Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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