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Question of the Month
Judges overwhelmingly approve of plea bargaining, largely for practical reasons

By Ed Cohen

Do most judges think plea bargains advance justice? Yes, but it’s complicated.

Nearly 90 percent of the 552 judges who voted in our one-question survey of NJC alumni earlier this month said plea bargains, which some prefer to call plea agreements, do advance justice. But judging from the comments, which nearly half of the respondents left, most see this as a moot question.

More than 95 percent of criminal cases today end in plea agreements. If all or even a significantly larger percentage of cases went to trial, the system would be overwhelmed.

“You have any idea how many counties would go bankrupt if (they were) required to try every case filed???” asked one judge anonymously, as was usually the case with the comments.

“Without them,” wrote another, “we would have a docket dating back to the 1800s.”

Circuit and Drug Court Judge John H. Graham of Alabama’s 38th Judicial Circuit said plea bargains “absolutely” advance justice.

“The guilty know they’re guilty and negotiate the best possible solution to the problem. It saves taxpayer money, saves court, juror and lawyer time and money, reduces stress on victims, and brings speedy conclusions to cases, thereby reducing backlogs.”

Another judge appreciated that plea bargains prevent “revictimization” of people who have suffered sexual assault or other violent crimes. A guilty plea means they don’t have to appear in court and describe what happened to them.

“I have seen countless children under the age of 10 have to describe unimaginable crimes,” wrote the judge.

Many judges expressed confidence in plea deals because the parties to the negotiation – prosecutors, defense counsel, law enforcement, defendants and often victims – know the facts best.

“They should be able to provide the Court with a basis for a just resolution,” wrote Beaver County, Pennsylvania, President Judge Richard Mancini.

Among many respondents, though, the question of whether plea deals advance justice elicited a response along the lines of “It depends.”

The No. 1 concern – mentioned even by some judges who said plea deals advance justice overall – was that defendants will sometimes agree to plead guilty even when they are innocent. Several judges accused prosecutors of intentionally overcharging suspects, building up potential for a massive sentence, in an effort to scare the accused into pleading guilty to lesser charges.

“There have been a few cases,” wrote one judge, “where you get the uneasy feeling that an innocent person sees the offer as their only choice while facing substantial prison time if convicted. I am very careful talking to those people, as I believe are most judges.”

 Other comments about plea bargains, pro and con:

They can facilitate treatment. Mary Davidsen, a former public defender who now serves as director/chief environmental law judge in the Indiana Office of Environmental Adjudication, said plea bargains, such as those used in problem-solving courts, can address underlying problems like mental health and drug addiction if they include treatment plans.

Incompetent or corrupt representation can be a problem. Some judges mentioned inexperienced or overworked public defenders or outside lawyers who put their clients at a disadvantage in plea negotiations. Another had noticed the emergence of what the judge called “attorney mills” that drag out negotiations in order to bill their clients for more hours.

Consistency can be an issue. “Often plea bargains are given to defense attorneys that the State’s attorney likes or is afraid to face in court,” wrote one anonymous judge.

They can speed up justice by reducing the time between arrest and adjudication. On the other hand, innocent defendants stuck in jail because they cannot afford bail have an incentive to jump at a deal.

Racial injustices. Kyerra Johnson-Masse, a civil management analyst with Missouri’s Office of the State Court Administrator and founder of the We Speak Foundation, a Christian anti-poverty group, said “time has shown” that plea bargains have become “a tool for discriminatory practices.”

They can shield against jury bias. One judge noted that plea bargains can reduce the risk of past convictions or arrests being mentioned at trial and tainting jurors’ opinions.

* Each month the College emails an informal, non-scientific one-question survey to its more than 12,000 judicial alumni in the United States and abroad. The results, summarized in the NJC’s Judicial Edge Today, are not intended to be characterized as conclusive research findings. 

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