Plea Bargaining, Essay Example

The practice of plea bargaining has changed the Anglo-American legal world drastically. It has turned the standard model of a criminal procedure into a semi-private process which allows space for the parties to exercise effective control over the procedural structure of the criminal trial. Plea bargaining can be viewed as a platform for contractual ordering. If the defendant agrees not to use his rights such as the Fifth Amendment right against self-incrimination, the Sixth Amendment right to a  jury trial, and the right to appeal, he / she receives the various concessions from the prosecution, including mitigation in the charge or the sentence. Overall, this results in efficient resolution of the criminal case and allows both prosecutor and defendant to avoid the costs of trial. Plea bargaining can also be legally anchored in the defendant’s autonomy of will, and in his struggle for effective control of his fate.

When engaging in plea bargaining with the prosecution, the defendant hopes to reduce the general costs of the offense including both the criminal punishment and the associated trial costs. Punishment suggests the sentence (years of imprisonment and/or fines) and reputation and opportunity costs (loss of income). The trial costs include financial and emotional resources, time expenditures and the cost of facing uncertainty (in case of risk-averse defendants).

From the point of view of prosecution, plea bargaining allows to significantly reduce the caseload on courts by reducing enforcement costs per case and the risk of acquittal. Prosecution tends to find plea bargaining helpful because its budget is usually quite restricted and does not allow to hold full trials for every suspect against whom there is sufficient evidence. Plea bargaining helps to increase the overall number of prosecuted offenders, due to which the prosecution can further its goals of deterrence, incapacitation, and retribution.

References

Fisher, T. (2007). The Boundaries of Plea Bargaining: Negotiating the Standard of Proof. Journal of Criminal Law and Criminology, 97(4), 943-970.