Plea Bargains — The Plea Bargainer’s Dilemma

Suppose two of your friends drive over to your house in New Jersey and pick you up for, what you believe, is a night on the town. As their car is pulling out of your driveway, two police cars pull up, sirens blaring, and the officers jump out, weapons drawn. You are arrested and charged as an accomplice in a robbery your friends just committed.

You retain counsel, and she has bad news: inexplicably, an eyewitness has identified you at the scene of the robbery, and the case against your friends seems airtight.  She believes you have a strong defense – you have an alibi. The strength of this alibi, however depends heavily on your credibility at trial. She warns you that first degree robbery in New Jersey carries a presumptive sentence of fifteen years, with a minimum sentence of ten years, and you have to serve 85% of the sentence to be eligible for parole. But, there’s a bright side. –The prosecutor recognizes that there’s a possibility you weren’t an accomplice, so he’s willing to offer you a plea bargain: a two year sentence in exchange for your testimony against your friends.

Rationally speaking, unless you are almost certain to win at trial, your expected value of defending yourself is less than the plea bargain you’ve been offered. Unless there’s only a thirteen percent chance of conviction (2/15 = 13.3) or less, taking the two year option is the best choice. Moreover, while a two year term in jail will ruin two years of your life, a fifteen year sentence could mean that you miss your twenties, are out of society for years, and are likely to become ‘institutionalized’ – meaning you’ve become so accustomed to jail that you can no longer function outside of it. You take the deal.

How frequently situations like that occur is up for debate. The Fourth Amendment requires that there be probable cause in order to indict someone, and many people who are indicted are not, as the hypothetical above presumed, innocent. But clearly many people who are indicted are innocent, or, though guilty of something, are not guilty of the crime charged. Faced with a potentially life ruining sentence, however, many people are compelled to take a plea that does not reflect the strength of the evidence against them. Clearly, that’s not a good result.

Before New Jersey underwent sentencing reform in the late 70s and early 80s, a first degree robbery charge would have been subject to considerable judicial discretion, and likely would have resulted in a considerably lighter sentence. The result of the sentencing reforms in New Jersey has been an increase in punishment: of 112 legislative changes in sentencing from 1979 to 2007, exactly zero involved reductions in punishment, while 50 upgraded crimes to higher sentencing structures, 39 imposed mandatory minimums, and 14 created an extended term provision. New Jersey is far from alone in that regard – most states enacted sentencing reform in the 70s and 80s that severely increased the jail term for crimes. This reform tracks an explosion in the prison population from 200,000 adults in 1973 to 2.4 million adults in 2015. The total amount of people institutionalized in the criminal justice system via probation, parole, jail, and prison exceeds seven million.

These sentencing reform regimes have positive sides. Plea bargains help prosecutors by giving them a means of extracting testimony against co-conspirators and accomplices. Higher sentences give prosecutors a heavier club with which they can threaten possible criminals into spilling the beans. They also play a vital role in the functioning of the criminal justice system, since pleas clear up court congestion, and higher sentences incentivize pleas. Further, some have argued that longer sentences serve to deter crime, though it’s not clear that that is the case. Historically speaking, however, it’s undeniable that crime rates have dropped precipitously in the last twenty years. Perhaps the most obvious benefit of extended sentences is that dangerous criminals are kept off the streets longer. But the negative side, however, is that the United States now has the largest incarcerated population in the world, and that number has continued to grow.

Reform is on the horizon, though primarily through the vehicle of drug sentencing. The Sentencing Reform and Corrections Act recently approved by the Senate Judiciary Committee proposes to reduce sentences for drug crimes, and several public figures, including President Obama and New Jersey’s Governor Chris Christie, have both spoken about the need for change in how the criminal justice system treats drug crimes. But these reforms are guided more by the realization that drug use isn’t necessarily something that needs to be criminalized, than that sentencing reform is necessary in general. Furthermore, there’s reason to believe that these reforms will have little impact on the overcrowdedness of the criminal justice system. Drug offenders only constitute around 20% of the prison population. Finally, adjusting sentencing in drug cases alone will have no impact on the Sophie’s choice faced by those charged for a crime they didn’t commit, but that carries a long prison sentence.

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