Chapter 12
Negotiated Justice and the Plea of Guilty
LEARNING OBJECTIVES
After reading this chapter, students should be able to:
1. Distinguish between the three most common types of plea agreements.
2. Discuss the three major factors influencing bargaining and discretion.
4. List the major reason each of the members of the courtroom work group engages in plea
bargaining.
6. Explain why adherents of the crime control model of criminal justice oppose plea
bargaining for different reasons from those of adherents of the due process model of
criminal justice.
LESSON PLAN
Correlated to PowerPoints
I. Law on the Books: Types of Plea Agreements
Learning Objective 1: Distinguish between the three most common types of plea
agreements.
A. Plea bargaining can best be defined as the process through which a defendant pleads
guilty to a criminal charge with the expectation of receiving some consideration
from the state.
B. Typically, plea agreements take one or more of the following three forms: charge
bargaining, count bargaining, and sentence bargaining.
C. Charge Bargaining
i. In charge bargaining, the prosecutor allows the defendant to plead guilty to a
less serious charge than the one originally filed.
D. Count Bargaining
i. In count bargaining, the defendant pleads guilty to one or more counts in the
indictment or information and the prosecutor dismisses the remaining charges.
E. Sentence Bargaining
i. With sentence bargaining, a plea of guilty is entered in exchange for a promise
of leniency in sentencing.
F. Differentiating Plea Bargaining from “Straight–Up” Pleas
i. Defendants may make a “straight–up” plea (also called an open plea or a “plea to
the sheet” in which they plead guilty to the original charges without any
agreement as to sentencing and allow the judge to determine the outcome in the
case. These pleas are quite risky and fairly rare.
Class Discussion/Activity 1
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What are the most common types of plea agreements? Discuss some kinds of criminal
cases in which each of these types of plea agreements would be likely. What factors
would encourage the courtroom work group to pursue each types of agreement?
II. Law in Action: Bargaining and Caseloads
A. Plea bargaining is usually portrayed as a regrettable but necessary expedient for
disposing of cases. But the caseload hypothesis cannot explain why plea bargaining
is just as prevalent in courts with relatively few cases as it is in courts with heavy
caseloads (Eisenstein & Jacob, 1977; Covey, 2009).
What If Scenario
Imagine you are the district attorney of your county and are about to face a 20 percent
budget cut in the next fiscal year, which would mean that 20 percent of your prosecutors
would be laid off. The layoffs would mean that your office would not be able to
prosecute most misdemeanor cases and up to 10 percent of felony cases. You are forced
to choose between prosecuting auto theft or domestic violence cases. Which one would it
be and why?
III. Law in Action: Bargaining and Discretion
Learning Objective 2: Discuss the three major factors influencing bargaining and
discretion.
A. Presumption of Factual Guilt
i. The process of negotiated justice does not operate in isolation from the other
stages of the criminal court process. What has gone before significantly affects
how courts dispose of cases on a plea.
ii. The opposite is equally true. Throughout the history of a case, decisions on bail,
indictment, and screening have been premised on the knowledge that the
majority of defendants end up pleading guilty (Wright & Miller, 2002).
iii. By the time a case reaches the trial stage, the courtroom work group presumes
that the defendant is probably guilty.
iv. Many discussions of plea bargains leave the false impression that the attorneys
haggle only over the sentence. In fact, courtroom work groups spend a lot of time
B. Costs and Risks of Trial
i. The possibility of trial greatly influences negotiations. Trials are a costly and
time-consuming means of establishing guilt.
ii. Based on these considerations, all members of the courtroom work group have a
common interest in disposing of cases and avoiding unnecessary trials.
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iii. Judges and prosecutors want high disposition rates in order to prevent case
backlogs and to present a public impression that the process is running smoothly.
iv. Public defenders prefer quick dispositions because they lack the personnel to
handle the caseload.
v. Private defense attorneys depend on a high case turnover to earn a living,
because most of their clients can afford only a modest fee.
C. What to Do with the Guilty
i. The adversary proceedings of trial are designed to resolve conflict over guilt or
innocence. In practice, however, it is not the issue of legal guilt that is most often
in dispute, but rather what sentence to impose on the guilty.
ii. Unlike a trial, plea bargaining does focus on what to do with an offender—
particularly, how much leniency is appropriate.
Media Tool
Watch PBS video FRONTLINE: The Plea:
See Assignment 1
IV. Bargaining and the Courtroom Work Group
Learning Objective 4: List the major reason each of the members of the courtroom work
group engages in plea bargaining.
A. Plea bargaining is a contest involving the prosecutor, defendant, defense counsel,
and at times, the judge. Plea bargaining typically begins informally.
B. Trust is a critical component of these discussions.
C. Bargaining is possible because each of the legal actors understands the realities of
D. Prosecutors
i. To the prosecutor, a plea bargain represents the certainty of conviction without
the risks of trial.
E. Defendants
i. To understand plea bargaining, it is important to recognize that it is often in the
defendant’s best interest to give up the right to be presumed innocent at a trial.
The primary benefit of a plea is the possibility of a lenient sentence.
F. Defense Attorneys
i. If the prosecutor enters negotiations from a position of strength, the opposite is
true of defense attorneys, who have few bargaining chips.
ii. The decision-making process for defense attorneys involves three phases. First,
the defense attorney must assess the offer for a guilty plea. Second, the defense
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Emmelman, 1996, 2002).
iii. Convincing clients to accept the plea is not always easy.
G. Judges
i. Given the division of powers in the adversary system, judges are reluctant to
intrude on prosecutorial discretion. Even more fundamentally, the judge knows
relatively little about each case.
ii. Within these constraints, judges have some ability to shape the plea-bargaining
process.
iii. A survey of state trial court judges (Ryan & Alfini, 1979) revealed four basic
patterns: a few judges are actively involved in plea negotiations; some judges are
indirectly involved; a small percentage of judges attend plea discussions but do
not participate; but the majority of judges do not attend plea-negotiating sessions.
Thus, their role is limited to ratifying agreements reached by others.
Class Discussion/Activity 2
Have students take on the roles of the different actors in the courtroom work group and
provide them with criminal case vignettes. Have small groups “plea bargain” their
cases. Bring them back together as a class and discuss the plea bargains. Have some
students separately plea bargain the same case vignette and compare the resulting plea
bargains. Were they the same? Different? Why?
V. Dynamics of Bargaining
Learning Objective 5: Indicate why a few cases go to trial but most defendants plead
guilty.
A. Decision-Making Norms
i. Through working together on a daily basis, the members of the courtroom work
group come to understand the problems and demands of the others.
ii. Plea bargaining is a complex process, but studies in different courts reveal
important similarities in shared norms.
iii. The most important consideration is the seriousness of the offense.
iv. The next most important factor is the defendant’s criminal record.
v. Another key consideration is the strength of the prosecutor’s case.
vi. These shared norms structure plea negotiations. Courtroom work groups have
similar shared norms about sentencing.
vii. Upward or downward adjustments are made, depending on the circumstances of
the individual case.
B. Why Cases Go to Trial
i. Cases go to trial when the parties cannot settle a case through negotiation.
Defense attorneys recommend a trial when the risks of trial are low and the
possible gains are high. Some defendants insist on a trial, no matter what.
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C. Jury Trial Penalty
i. It is a common assumption in courthouses around the nation that defendants who
do not enter a plea of guilty can expect to receive harsher sentences. Several
studies provide empirical documentation for these courthouse perceptions
(Brereton & Casper, 1981–1982; Freiburger & Hilinski, 2013; Kim, 2014).
ii. In serious cases, the sentence imposed on a defendant who is found guilty after
trial will often be more than five times more severe than the expected sentence
for the same offense with a guilty plea (Kim, 2014; King et al., 2005; McCoy,
2003; Ulmer & Bradley, 2006).
iii. The U.S. Supreme Court has clearly sanctioned the jury trial penalty.
Write a two-page paper discussing misconceptions, enforcement, and innovative
practices related to victims and plea bargains.
Media Tool
Read the article titled Current Issues:
What If Scenario
What if you were charged with armed robbery because you gave three of your friends a
ride to a local bank, not knowing that they were going to rob it. On arrival, your friends
told you they just needed to go in to withdraw some money and told you to wait in your
car with the engine on. A couple of minutes later, your friends ran out of the bank with
cash in their hands. They told you to quickly drive away but police had already arrived
and all of you were placed under arrest. Your public defender told you to plead guilty to
second degree robbery with a prison term of 3 years, and said that if you insisted on
going to trial, you could face up to 25 years in prison. You had one prior conviction
record for burglary. What would your decision be and why?
See Assignments 2, 3, and 4
VI. Copping a Plea
Learning Objective 3: Recognize the importance of Boykin v. Alabama.
A. A plea of guilty is more than an admission of conduct. It is also a conviction that
involves a defendant’s waiver of the most basic rights of the court process:
presumption of innocence; jury trial; and confrontation of witnesses (Boykin v.
Alabama, 1969).
B. Under the leadership of Chief Justice Warren Burger, however, the U.S. Supreme
Court sought to set standards for the plea-bargaining process (Santobello v. New
York, 1971).
C. Following Santobello, the plea process has become more formalized.
D. Questioning the Defendant
i. Today, to prevent the possibility of covering up plea bargaining, many courts
now require that a plea agreement be placed on the record.
ii. Most defendants plead guilty to one or more charges listed in the charging
document.
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iii. Before a defendant’s plea of guilty can be accepted, the judge must question the
defendant.
iv. In light of Boykin, Rule 11 of the Federal Rules of Criminal Procedure and
similar state provisions bars courts from accepting a plea of guilty in felony
proceedings unless the court is satisfied, after inquiry, that the plea is made
waive important constitutional rights.
v. A judge must ensure that a defendant pleading guilty has not been improperly
influenced by the prosecution, law enforcement officials, or the defendant’s own
attorney.
vi. At a Rule 11 hearing, the judge inquires whether the defendant understands the
nature of the charge(s) and the possible penalty upon conviction; whether the
defendant is satisfied with the services of defense counsel; and whether the
defendant realizes that a plea waives a series of constitutional rights, including:
vii. Courts often use a Boykin form to ensure that defendants have been informed of
all the rights they are waiving.
E. No Contest and Alford Pleas
i. There are two types of pleas that do not require a defendant to allocute by giving
a factual basis for the crimes to which they are pleading. This is because these
two pleas do not involve express admissions of guilt. Rather, they amount to
consent to be convicted and punished.
ii. The first such plea is a no contest plea, sometimes referred to as a plea of nolo
contendere—Latin for “I will not contest it.”
iii. The second type of plea that does not technically require allocution is an Alford
plea. This plea allows a defendant to plead guilty while claiming innocence.
iv. The only difference between a nolo plea and an Alford plea is that the defendant
does not maintain he or she is innocent in a nolo plea, whereas innocence is
asserted in Alford pleas.
v. Some judges refuse to accept nolo or Alford pleas since they do not require the
defendant to fully admit guilt.
F. Acceptance and Withdrawal of Pleas
G. Effective Assistance of Counsel During Plea Bargaining
i. Decades of what seemed to be Supreme Court indifference to plea bargaining
practices ended with two significant 2012 decisions.
ii. Galin Edward Frye’s attorney never told him of plea bargain offers from
prosecutors on charges that he was driving with a revoked license. Frye later
pleaded guilty and was sentenced to three years in prison. But prosecutors had
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iii. In Lafler v. Cooper (2012), the Court held that that the defendant had received
ineffective assistance of counsel when his attorney recommended against
accepting a plea agreement because the jury would not convict Lafler of murder
(but it did).
Class Discussion/Activity 3
Why do adherents to the crime control model oppose plea bargaining? Why do adherents
to the due process model oppose plea bargaining?
Class Discussion/Activity 4
What is the importance of Boykin v. Alabama?
See Assignments 3, 5, and 6
VII. Law in Controversy: Abolishing Plea Bargaining
Learning Objective 6: Explain why adherents of the crime control model of criminal
justice oppose plea bargaining for different reasons from those of adherents of the due
process model of criminal justice.
A. Doubts about plea bargaining have resulted in attempts in some jurisdictions to
abolish or reform the practice. Such efforts conform to one of the most controversial
recommendations of the National Advisory Commission on Criminal Justice
Standards and Goals (1973)—abolishing plea bargaining altogether.
B. Faced with mounting public criticism and professional concern, prosecutors and
judges in a number of American communities have altered traditional plea–
bargaining practices.
C. Are the Changes Implemented?
i. In analyzing the impact of changes in plea-bargaining practices, a basic question
Heumann & Loftin, 1979; Nimmer & Krauthaus, 1977).
D. Is Discretion Eliminated or Just Moved Elsewhere?
i. Even when programs are successfully implemented, they may not have the
impact intended. Efforts to control discretion at one stage typically result in its
displacement to another part of the process. Thus, the result of “abolishing” or
“reforming” plea bargaining is often that the activity simply moves elsewhere.
E. Do Offsetting Changes Occur?
i. Efforts to abolish or change plea-bargaining practices may produce offsetting
changes. Efforts to increase sentence severity by abolishing or constraining plea
bargaining are not always successful.
Class Discussion/Activity 5
Why are so many cases plea bargained rather than going to trial? Why do some
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defendants go to trial?
necessary evil in order for our justice system to work expeditiously and efficiently? What
are the alternatives?
Media Tool
Read the article titled In Defense of Plea Bargaining:
What If Scenario
What if you are the city prosecutor and the city council is considering legislation to ban
plea bargaining in your jurisdiction? You have been asked to make a recommendation
regarding the proposed legislation. What would your recommendation be? Be sure to
provide support for your recommendation.
KEY TERMS
Alford plea: Allows a defendant to plead guilty while claiming innocence.
allocute/allocution hearing: Admission by the defendant to committing the acts central to the
crimes charged as required in order to enter a guilty plea. Hearing where the defendant is
required to provide the factual basis for a plea to each charge, admitting to the conduct central to
the commission of the crime(s).
Boykin form: Document intended to show that the defendant entered a guilty plea voluntarily
and intelligently, understanding the charges and consequences of conviction (Boykin v. Alabama,
1969).
charge bargaining: In return for the defendant’s plea of guilty, the prosecutor allows the
defendant to plead guilty to a less serious charge than the one originally filed.
count bargaining: The defendant pleads guilty to some, but not all, of the counts contained in
the charging document, which reduces the potential sentence.
nolo contendere/no contest: Latin phrase meaning “I will not contest it.” A plea of “no contest”
in a criminal case means that the defendant does not directly admit guilt but submits to
sentencing or other punishment.
LECTURE NOTES
Charge bargaining, count bargaining, and sentence bargaining are the three main methods used
in the plea bargaining process. Charge bargaining is used in cases of a defendant pleading guilty
to robbery, versus armed robbery. A reduction in the charge is provided to the defendant. In
count bargaining, most sentences are run concurrently so that the defendant receives a more
lenient sentence. In sentence bargaining, the defendant pleads to the original charge and bargains
importance of having a relationship with this person is essential and will often sway a case. The
defendant is often the middle man, who can be the person to assist in the decision making
process, and in many cases can be swayed to make a decision to plea bargain. The judge relies on
the prosecutor to seek justice and is the person who accepts the final plea.
The plea bargaining process is something that should be placed on the record. After a plea is
accepted, it is important to ensure that it is in writing because “if it is not in writing, it never
happened.” The judge is required to read the charges and question the defendant to ensure they
POSSIBLE DISCUSSION POINTS FOR CLASS DISCUSSION QUESTIONS
1. The three most common types of plea agreements are charge bargaining, count bargaining,
and sentence bargaining. In a charge bargain, the defendant pleads guilty to a less serious
2. Prosecutors engage in plea bargaining because they want to gain convictions, defense
3. Crime control model thinkers oppose plea bargaining because they believe defendants
receive punishments that are too lenient. Due process model thinkers believe that it creates
4. In Boykin, the Court held that a guilty plea was more than an admission of guilt and involved
5. All of the members of the courtroom work group have a vested interest in securing plea
bargains. Prosecutors engage in plea bargaining because they want to gain convictions,
defense attorneys seek leniency for their clients, and judges feel pressures to move cases.
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ASSIGNMENTS
1. “Plea and Charge Bargaining”
2. Research your local criminal court and find a case that went to trial. Identify qualities about
the case explaining why it went to trial rather than being plea bargained. Write a brief paper
on your findings.
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3. “Deal Frees ‘West Memphis Three’ in Arkansas”
• New York Times article
• Assignment: Have students read the article on the West Memphis Three. Ask students
to discuss the concept of the Alford plea. Then have them discuss why the defendants
chose the Alford plea in this case. What do they think of this case and the aftermath?
4. “Death as a Bargaining Chip: Plea Bargains and Capital Punishment”
• Southern California Public Radio website
• Assignment: Have students read the article on the plea bargain that prevented the
defendant from receiving a possible death sentence. Have students write a paper or
discuss the pros and cons of this type of plea bargain.
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5. Interview a judge or prosecuting attorney. Find out what their attitude is toward plea
bargaining. Ask if they require the use of a Boykin form for guilty pleas, and if so, whether
6. “Making Your Deal with the Devil”
• Assignment: Have students read the section on collateral consequences of pleas. What
do they consider to be the most onerous consequences? Have them briefly summarize
these consequences and discuss in class. Note: Other sections of the article can easily
be used for elaboration on topics in the chapter.
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