Uses and Abuses of Plea Bargaining


By Vinay Ranjan,

5th Year, Symbiosis Law School, Pune.


The Brihadranayak Upanishad says that the law is king of kings. Thus according to our Dharma Shastras, no one is above the law, not even the king. This dominating position of law among the Hindus is due to the fact that the law, as conceived by the ancient was not a man- made thing but a divinely declared one. The Dharma Shastras were not only legal but religious. Men were not considered eligible enough to amend any of such rules as laid down in such religious text.


Then came the period where king or better say the head of state gains the authority to frame rules and decide over the matter of governance. He was considered as supreme and unquestionable.


Then came the era of liberalization and stage of equity and natural law where the legislated laws are questioned on the ground of morality, equity and reasonableness. Mere sanction of state or authority was not considered enough for its recognition among the people.


And what we presently experience can be considered as socialization of law, where the law is mended, formed and analyzed wholly on one criteria- benefit of society as a whole. The concept of Plea Bargaining in our justice system can be considered as a living example of such practice. It came as a result of the loads of loopholes existing in our judicial system like lots of cases, delayed justice and a hell lot of procedures involved which make it crippled and unable to help the poor and the needy.


Meaning of Plea bargaining

Black's Law Dictionary defines it as follows:

"the process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant's pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge."


Wikepedia defines it as:

A plea bargain (also plea agreement or copping a plea) is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. The defendant agrees to plead guilty or no contest (and often allocute) in exchange for some agreement from the prosecutor as to the punishment. A plea bargain can also include the prosecutor agreeing to charge a lesser crime (also called reducing the charges), and dismissing some of the charges against the defendant.


"Plea bargaining is an essential component of the administration of justice. Properly administered, it is to be encouraged . . . It leads to prompt and largely final disposition of most criminal cases." 

-- Chief Justice Warren Burger, Santobello v.New York, 404 U.S. 257(1971)


"Where it appears that the interest of the state in the effective administration of criminal justice will be served, the prosecution, while under no obligation to negotiate any criminal charges, may engage in plea negotiation for the purpose of reaching an appropriate plea agreement."

                                                --National Prosecution Standards, 2d Edition



    Plea-bargaining can conclude a criminal case without a trial. When it is successful, it results in an agreement between the prosecutor and defendant. In this agreement the defendant agrees to plead guilty without a trial, and in return the prosecutor agrees to dismiss certain charges or make favorable sentence recommendations to the court. Plea-bargaining is expressly authorized in statutes and in court rules. It is usually undertaken by a prosecutor to obtain important information from a defendant or to avoid a long and costly trial. The negotiation of an agreement between the prosecution and the defense whereby the defendant pleads guilty to a lesser offence or to one or some of multiple offences usually in exchange for more lenient sentencing recommendations, a specific sentence, or dismissal of other charges plea-bargain.

The reasons for plea-bargaining by either side may be several. In most cases, the plea bargain is to avoid the uncertainty of the jury trial, and minimize the risk of undesirable results for either side. Prosecutors generally have wide discretion regarding the charges they may bring, and therefore have the option to charge the defendant with the highest charges that are applicable to the situation at hand. Thus in a plea bargain, the defendant is left to choose between the certainty of accepting sentencing for a much less serious charge, or the uncertainty of a jury trial in which the defendant might be found not guilty, but which also carries the risk of being found guilty of the original, more serious charges. It is because of these reasons that despite of its many critics, plea-bargaining is very common. More than 90% of convictions come from negotiated plea, which means that less than 10% of criminal cases result in a trial.

Plea Bargaining actually involves three areas of negotiation:

·        Charge bargaining: This is a common and widely known form of plea. It involves a negotiation of specific charges (counts) or crimes that defendants will face at trial. Usually in return of a plea of “guilty” to a lesser charge, a prosecutor will dismiss the higher or other charge(s) or counts. For example, in return for dismissing charges for first-degree murder, a prosecutor may accept a “guilty” plea for manslaughter. (Subject to court approval).

·        Sentence bargaining:  Sentence bargaining involves the agreement to a plea of guilty (for the stated charge rather than a reduced charge) in return for a lighter sentence. It saves the prosecution the necessity of going through trial and proving its case. It provides the defendant with an opportunity for a lighter sentence.

·        Fact bargaining: The least used negotiation involves an admission to certain facts ("stipulating "to the truth and existence of provable facts, thereby eliminating the need for the prosecutor to have to prove them) in return for an agreement not to introduce certain other facts into evidence.

Practice of Plea Bargaining


The plea bargain was a prosecutorial tool used only episodically before the 19th century. ''In America,'' Fisher says, ''it can be traced almost to the very emergence of public prosecution -- and public prosecution, although not exclusive to the U.S., developed earlier and more broadly here than most places.'' But because judges, not prosecutors, controlled most sentencing, plea bargaining was limited to those rare cases in which prosecutors could unilaterally dictate a defendant's sentence. ''Not until the crush of civil litigation brought on by the explosion of personal-injury cases in the industrial era did judges begin to appreciate the workload relief plea bargaining promised.'' In other words, plea bargaining is arguably another outgrowth of late-19th-century industrialization. 

1633: Galileo gets house arrest from the Inquisition in exchange for his reciting penitential psalms weekly and recanting Copernican heresies. 

1931: Al Capone brags about his light sentence for pleading guilty to tax evasion and Prohibition violations. The judge then declares that he isn't bound by the bargain, and Capone does seven and a half years in Alcatraz

1969: To avoid execution, James Earl Ray pleads guilty to assassinating Martin Luther King Jr. and gets 99 years. 

1973: Spiro Agnew resigns the vice presidency and pleads no contest to the charge of failing to report income; he gets three years' probation and a $10,000 fine (roughly one-third of the amount at issue). 

1990: Facing serious federal charges of insider trading, Michael Milken pleads to lesser charges of securities fraud; soon after, his 10-year sentence is reduced to 2 years. 

Civil law countries

The civil law is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by medieval legal scholars. Traditionally, civil law countries, such as France, Germany, and Italy have utilized

Inquisitorial systems. The prosecutor, therefore, usually does not have the authority to enter into a plea agreement with a defendant. However, several civil law countries have recently adopted a modified version of the U.S. plea bargaining system or some other methods to quickly dispose of cases and reserve resources.

Furthermore, each country has its own system to determine whether pleading guilty – or

its equivalent if not available in that country – is a mitigating factor for sentencing. Moreover, if it is a mitigating factor, each country determines whether it is a permissive or mandatory mitigating factor.


Common law countries

Common law countries have different trial proceedings than civil law countries. Common law countries have an adversarial system, while civil law systems use an inquisitorial

system. While there are many important differences between the two legal systems, the most important difference is the role of the judge in each. In the common law system, the judge is not involved in finding evidence against the defendant, as occurs in civil law systems. In common law systems, the prosecution bears the burden of proving the defendant’s guilt beyond a reasonable doubt. If the prosecution fails to do so, then the defendant is found not guilty. It is also important to note that the prosecution is usually given a great deal of discretion in terms of whether to charge the defendant and with what crimes.



A new chapter - Chapter XXI A - on `plea bargaining' has been inserted in the Criminal Procedure Code (1973) through the Criminal Law (Amendment) Act, 2005, which was passed by Parliament in the winter session. The provision is likely to bring relief to a large number of under trials lodged in various jails of the country and help reduce the long pendency in the courts.

It is applicable only in respect of those offences for which punishment of imprisonment is up to a period of 7 years, it does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman or a child below the age of 14 years.

Requirements for a Valid Plea

Plea bargaining is generally considered as an USA based concept. Therefore any guidelines for a valid plea can be traced to the USA legislation and the general practice followed there.  Federal Rules of Criminal Procedure and Brady v. United States serve as an important guideline in this regard.


(a) Voluntarily

The U.S. Supreme Court in Brady v. United States recognized that a plea is valid only if it is entered into voluntarily. The court’s reasoning behind this minimal standard was that a defendant who admitted in open court the acts with which he was charged became a witness against himself.  The Fifth Amendment to the U.S. Constitution bars a defendant to be compelled to be such a witness. He is also waiving his constitutional rights by accepting judgment of conviction.

The Brady court adopted a standard to determine the voluntariness of a defendant’s plea.

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his

own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable

promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).

This standard also requires the court to advise the defendant of his rights. The Brady court, therefore, recognized that voluntariness is determined by the facts and

circumstances of each individual case.


(b) Intelligently

The Brady court also determined that a plea must be intelligently made. If one does not enter into a plea intelligently, then he is unknowingly waiving constitutionally guaranteed rights. “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Therefore, a defendant must know his constitutional rights prior to waiving them. He also must understand the consequences of waiving those rights.


(c) Factual Basis

A court must determine that there is a factual basis for entering the guilty plea.  If no such factual basis exists, then the court must reject the plea. However, in limited cases, a court may accept a guilty plea – albeit where the defendant maintains his innocence – if there is ample evidence to find the defendant guilty


(d) Miscellaneous Requirements

Finally, the court must either accept or reject the defendant’s plea. If the court accepts the plea, then the court finalizes the judgment.  It is important to note that the court may accept the defendant’s plea without recognizing the prosecutor’s recommendation for a more lenient sentence; in other words, the court may accept the defendant’s plea of guilty but impose a harsher sentence than the defendant thought would be imposed. If, on the other hand, the court rejects the plea agreement, it must notify the defendant that it is doing so and allow the defendant to withdraw his plea. Two other small but important aspects of the plea bargaining process are (1) the defendant must personally enter his guilty plea in open court,  and (2) the plea – regardless of whether it is a plea of guilty, nolo contendere, or Alford plea – must be recorded verbatim.


Plea bargaining as a boon

One of the key arguments in favor of plea bargains is that they help courts and prosecutors manage caseloads. The meaning of "speedy" is not fixed in terms of a specified amount of time but is determined according to the circumstances. By plea bargaining, prosecutors can reduce the number of cases set for trial so that cases do not get dismissed.

The American criminal justice system is said to simply cease to function without plea bargaining, and that it forms a framework wherein the accused and his accusers can reach an agreement which settles the case once and for all, in what is hoped will be a spirit of fairness.

Another reason why plea bargains are favored is that it allows criminals who accept responsibility for their actions to receive consideration for their remorse and for not causing limited resources to be expended in further investigating and litigating their case.

In other cases, a defendant may be culpable in one criminal matter, but have information that would help in prosecuting a broader or more significant matter. In such a case, prosecutors may agree to reduced charges or sentencing in the first matter, in exchange for the defendant's cooperation (e.g. testimony) in prosecuting the larger matter.

In still other cases, prosecutors may be certain of the guilt of the defendant in a matter, but the admissible or available evidence might not be enough to convince a jury of the defendant's guilt. This could be the result of a witness or victim dying prior to trial or certain evidence being lost or ruled inadmissible. In those situations it can be of benefit to both the prosecutor and the defendant to arrange a plea bargain; the prosecutor avoids the chance that the defendant could be found not guilty and the defendant avoids the chance that he or she could be found guilty of more serious charges or given a heavier punishment.

However it is important that one should have experienced competent defense attorneys, experienced competent prosecutors, and a judge who will oversee, make sure this is done correctly. The human element will always need be there in order for the plea bargaining system to work properly.


SANTOBELLO v. NEW YORK, 404 U.S. 257 (1971)

“Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pre-trial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.” 

 From the state's point of view, the main benefit of the plea bargain is that it saves time and money. Almost everyone acknowledges that the system would collapse if every case that was filed were to be set for trial; there is not enough money to try every case.

Experts point out some other benefits of pleas. Law professor Bruce Green tells FRONTLINE, "It… is in some ways fairer to witnesses and prospective jurors. Imagine if in all these cases, the victims and witnesses had to come to court to testify. And in all these cases, people had to leave their jobs in order to serve on juries. That would be very onerous for the public." Other experts note that pleas can get the accused out from under some harsh mandatory minimum sentences and rigid federal sentencing guidelines. And law professor Jonathan Oberman points out in his FRONTLINE interview, "… [a plea bargain] certainly is a good thing for someone who is guilty, someone who has factually done that which he or she is charged with doing, who is confronted with overwhelming evidence, and where the state is inclined to make some kind of offer because they would not want to put the victim, or families of the victim, or put the state, to the cost of proving the case at trial."

Plea bargaining has surged because there are more crimes and there are more petty offenses which now are criminalized (offenses such as failing to pay a bus fare, being an unlicensed vendor, petty burglary, shoplifting, etc.). Since going to trial is more costly and time consuming, plea bargains are a practical solution for the criminal justice system. And, as noted above, a guilty plea reduces uncertainty as to the outcome of a trial and is viewed as offering the accused a freedom of choice.

In addition, some legal experts maintain that the growth of plea bargaining is directly connected to the failures of the trial system. They say that today's jury trial has been captured by the lawyers and has become an "adversary jury trial" with an elaborate body of law -- law of evidence and certain other rules -- which is designed to control the legal combat. As law professor John Langbein tells FRONTLINE, "The ability of the lawyers in the O.J. case … to spin out the case forever and ever, their ability to dominate the jury selection in ways that was unheard of two centuries ago, all of that is the background to plea bargaining. As the jury trial becomes more and more time consuming, more and more complex under the weight of the lawyers' capture of the trial, we find that it becomes even more costly to give people that which the constitution says they must have."


Plea bargaining as bane

Challenges regarding its operation
1. Plea bargaining is highly likely to lead to results that may go against the basic principles of criminal justice systems, which are to seek truth and reach a fair decision, by making a compromise with criminals for the benefit of investigative authorities and the prosecution.

2. It can result in sentence disparity between the defendants who accept plea bargaining and those who do not.
3. In criminal cases involving more than one person, there is a possibility that those most culpable could get lighter sentences, leaving the less culpable to be severely punished instead.

Plea bargaining in a way challenges the basic principle of trial system i.e. everybody have a right of trial and he is not to be supposed guilty unless proved so. And there lies the arguments of most of the critics. It is totally considered as a practice evolved merely to fasten the disposal rates of cases by the courts and reducing the workloads of the courts. Critics of the system claim that the plea bargain system can put pressure on defendants to plead to crimes that they know that they did not commit, and that the outcome of a plea bargain may depend strongly on the negotiating skills and personal demeanor of the defense lawyer, which puts persons who can afford good lawyers at an advantage.

 Many jurists, especially in civil law nations, find the notion of plea bargaining contrary to the purpose of the law in which a specific action should be associated with a specific penalty.

"One reason that a lot of people plead guilty is because they're told they can go home that day, because they will get probation," says Steve Bright, a defense attorney and law professor who serves as director of the Southern Center for Human Rights. "What they usually don't take into account is that they are being set up to fail."

The downside for the defense is that the accused is giving up the right to have jury people hear all the evidence and test the prosecution's evidence against the defendant. The downside for the community is that it doesn't get to have a process which attempts to get at the truth of what really happened in the case. And, the plea bargaining system can be abused: It can extract guilty pleas from absolutely innocent people who plead guilty to charges they did not commit because they can't afford the risk of going to trial.

Law professor Stephen Schulhofer offers this general critique of the system: "The major problem with plea bargaining is that it forces the party into a situation where they have to take a guess about what the evidence is, about how strong the case might be, and they have to make that guess against the background of enormously severe penalties if you guess wrong. So defendants, even if they have strong defenses, and even if they are innocent, in fact face enormous pressure to play the odds and to accept a plea. And the more likely they are to be innocent, and the stronger their defenses are, the bigger discount and the bigger benefits the prosecutor will offer them. Eventually at some point it becomes so tempting that it might be irresistible, especially when the consequences of guessing wrong are disastrous.

"So the result is that the system as a whole doesn't do what we count on it to do, which is to sort out the guilty people from the innocent people. It doesn't do that because the guilty people and the innocent people are all faced with the same pressure to plead guilty."


Constitution of India reflects the quest and aspiration of the mankind for justice when its preamble speaks of justice in all its forms: social, economic and political. Those who have suffered physically, mentally or economically, approach the Courts, with great hope, for redressal of their grievances. They refrain from taking law into their own hands, as they believe that one day or the other, they would get justice from the Courts. Justice Delivery System, therefore, is under an obligation to deliver prompt and inexpensive justice to its consumers, without in any manner compromising on the quality of justice or the elements of fairness, equality and impartiality. ‘Delay’ in the context of justice denotes the time consumed in the disposal of case, in excess of the time within which a case can be reasonably expected to be decided by the Court. In an adjudicatory system, whether inquisitorial or adversarial, an expected life span of a case is an inherent part of the system. However, difficulty arises when the actual time taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in dispensation of justice.


It is this fear and lacunae in our judiciary system which leads to the borrowing of the concept of plea bargaining. But for the success of such a plan we should be conscious enough to the human element involved in the practice. A well aware victim, honest defense and an unbiased judge are some pre-requisite of this system to be helpful in proper manner, which I fear to say we still lacks. The people here still don’t know there basic rights and the amount of voluntariness involved in bargaining may be fatal for him.