September 29, 2002
Plea Bargain
By DIRK OLIN

The recent cases of Michael Kopper, the Enron book-cooker, and John Walker Lindh, the Taliban fellow-traveler, both ended with a practice that, according to Stephen Schulhofer, an N.Y.U. law professor, is wrongly considered almost ''inevitable'' by most players in the justice system: a plea bargain. Kopper exemplifies one common type -- the white-collar criminal with a good lawyer who agrees to help prosecutors hook bigger fish in exchange for a much lighter sentence than he might otherwise get (and thereby sparing the state the costs of a trial). Lindh typifies the defendant who pleads to avoid the possibility of execution; the government's reward includes not having to expose security sources (or, perhaps, a weak case) if the case goes to trial. 

The Bill of Rights makes no mention of the practice when establishing the fair-trial principle in the Sixth Amendment, but the constitutionality of plea bargaining has been repeatedly upheld, and the bargain's basic dynamic is well known to viewers of pulp TV. In fact, says Albert Alschuler, a University of Chicago law professor, roughly 90 percent of convictions occur when the defendant waives the right to trial and pleads guilty. And most of those pleas involve a deal that reduces punishment. 

According to George Fisher, a former prosecutor now at Stanford Law School: ''The general public tends to regard plea bargaining as too lenient. The defense bar and others of like mind think it too coercive.'' Schulhofer and Alschuler are among the strongest academic critics of the practice, emphasizing the economic motivation behind it. ''Court-appointed defenders are typically paid for only the first 15 or 20 hours' worth of work -- and prosecutors have a strong incentive not to lose,'' Schulhofer says. ''This is a conflict of interest problem.'' 

The efficiency gained by plea bargains outweighs their evils, proponents say. Some members of the so-called law-and-economics school, like Frank Easterbrook, an appellate judge who lectures at the University of Chicago, also claim that plea bargaining gives defendants more autonomy. Fisher counts himself in the middle. He says that the practice is ''a skulking truce'' but considers it practically unavoidable, if the system is not to grind to a halt, and nowhere near the systemic blight limned by opponents. 

A Little History
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. 

Bargains Abroad 
Defenders of American-style plea bargaining point out that its utility is proved by other countries' increasingly explicit adoption of the U.S. model. Once forbidden in most of Europe and technically banned in Japan, plea bargaining has steadily crept into many countries' systems during the past generation. ''In Germany, they say it's still controversial,'' Alschuler says, ''but most observers say it happens there now. And Italy went so far as to pass federal legislation formally legalizing it.'' The Japanese claim that 
the practice is horrible, but then, Alschuler notes, ''they make a very big deal about repentance for your crimes.'' That need to put remorse on display, which can't exactly be a legal sentence, means that ''it's hard to deny that they have something like it.'' Scandinavian countries largely maintain prohibitions against the practice. 

Pop Pleas 

* ''Return to Paradise'' (1998) turns on a complex plea bargain involving Americans caught up in a Malaysian justice system. 

* ''. . . And Justice for All'' (1979) slams the inequities of the criminal justice system, including the ugliness of plea bargaining. (Al Pacino is dragged from the courtroom screaming, ''Wanna make a deal?'') 

* John Proctor struggles with honor, faith and an offer he can't refuse -- or can he? -- in ''The Crucible,'' by Arthur Miller (1953). 

Game Theory for the Defense 
From 'Law's Order,' by David Friedman, of the Santa Clara University School of Law: 

For a real prisoner's dilemma involving a controversial feature of our legal system, consider plea bargaining.

The prosecutor calls up the defense lawyer and offers a deal. If the client will plead guilty to second-degree murder, the district attorney will drop the charge of first-degree murder. The accused will lose his chance of acquittal, but he will also lose the risk of going to the chair. 

Such bargains are widely criticized as a way of letting criminals off lightly. Their actual effect may well be the opposite -- to make punishment more, not less, severe. How can this be? A rational criminal will accept a plea bargain only if doing so makes him better off -- produces, on average, a less severe punishment than going to trial. Does it not follow that the existence of plea bargaining must make punishment less severe? 

To see why that is not true, consider the situation of a hypothetical district attorney and the defendants he prosecutes. There are 100 cases a year; the D.A. has a budget of $100,000. With only $1,000 to spend investigating and prosecuting each case, half the defendants will be acquitted. But if the D.A. can get 90 defendants to cop pleas, he can concentrate his resources on the 10 who refuse, spend $10,000 on each case and get a conviction rate of 90 percent. 

A defendant faces a 90 percent chance of conviction if he goes to trial and makes his decision accordingly. He will reject any proposed deal that is worse for him than a 90 percent chance of conviction but may well accept one that is less attractive than a 50 percent chance of conviction, leaving him worse off than he would be in a world without plea bargaining. All defendants 
would be better off if none of them accepted the D.A.'s offer, but each is better off accepting. . . . Individual rationality does not always lead to group rationality. 

Study List 
* Overview: ''Plea Bargaining's Triumph: A History of Plea Bargaining in America,'' by George Fisher (due from Stanford University Press in February). 

* Arguments for and against: Robert E. Scott and William J. Stuntz's ''Plea Bargaining as Contract'' and Frank Easterbrook's ''Plea Bargaining as Compromise,'' Yale Law Journal, vol. 101 (1992). 

* Trenchant critique: Stephen Schulhofer's ''Is Plea Bargaining Inevitable?'' Harvard Law Review, vol. 97 (1984). 
 

Dirk Olin is the national editor at The American Lawyer.