Bargaining away your rights

law-order-svu-law-and-order-svu-30926949-1280-1024The Law and Order franchise is set in New York. Very often prosecutors negotiate for a guilty plea by offering to lower the charge from Murder One to something less to, as they put it, “take death off the table”. I am still waiting for a defendant to respond, “well, there hasn’t been an execution in New York since 1963, so I am willing to take my chances on being the first”.

But the fact that the death penalty is part of the negotiation in plea bargaining is a source of some concern. The defendant is, after all, being asked to give up his (or her) right to a jury trial in exchange for a lesser sentence. To put it another way, the prosecutor is threatening to pursue a more severe penalty to secure cooperation. The prosecutor is threatening that you might very well be killed if you don’t cooperate, and that is a pretty severe threat. 

The Supreme Court has held that plea bargains are constitutional because the threat is one that the prosecutor is entitled to make. If the facts of the case support the more serious charge then the prosecutor can threaten that charge. (Obviously, it would be unconstitutional if the prosecutor were threatening to fabricate an unjustified charge). 

But is it really that simple? It seems unlikely that the courts would allow bargains designed to get defendants to waive any other of their rights. What if a prosecutor offered a lighter sentence if the defendant defended himself and waived his right to counsel? Could any court contemplate that?

The fact that prosecutors doubt their ability to convict in open court – and they would not be offering a plea bargain otherwise – does not, of course, mean the defendants are innocent. Many are undoubtedly guilty, and being sentenced without the expense and risk of a fair trial. There are clear pragmatic advantages to this. It is tempting to think that no innocent person would plead guilty just to avoid a trial. But if the choice is the certainty of a one year sentence or the serious risk of a ten year sentence, even an innocent person might take the plea.

And this is the risk which the guaranteed right to a fair trial is supposed to avoid. Yes, if those people went to trial some would be acquitted, and some of those acquitted would be guilty, but it seems very likely that this system of plea bargains is scooping up innocent people along with the guilty. 

Given the fragility of constitutional rights it is surprising that the Supreme Court has allowed this abuse. Think of your Miranda rights, for example: it is not enough that you have the right to remain silent. You must be expressly told that you have the right to remain silent, or else any confession is deemed to be coerced. It seems odd that taking a confession from someone who knows perfectly well about his Miranda rights, but has not been advised of them can be considered coercion and threatening long prison sentences or even death is not.

Plea bargaining has more or less replaced the jury trial – it is used in 95% of criminal cases. Can we really be sure it meets the Blackstone standard: it is better that ten guilty men go free than that one innocent should suffer?

qlQuentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at

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