The ‘Age of the Plea Bargain’ in U.S. Criminal Justice

With 94 percent of state felony cases ending in guilty pleas, there are few trials in the U.S., and guilty pleas keep the machinery of justice running smoothly.

This is the age of the plea bargain in U.S. courts. Most people adjudicated in the criminal justice system waive the right to a trial and the host of protections that go along with one, including the right to appeal. Instead, they plead guilty. The vast majority of felony convictions are now the result of plea bargains—94 percent at the state level, and 97 percent at the federal level. Estimates for misdemeanor convictions run even higher. These are astonishing statistics, The Atlantic reports, and they reveal a stark truth about the American criminal-justice system: Very few cases go to trial. Supreme Court Justice Anthony Kennedy, quoting a a law-review article, wrote, “ ‘Horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system.’ ”

Legislators have criminalized so many behaviors that police are arresting millions of people annually—almost 11 million in 2015. Taking to trial even a significant proportion of those who are charged would grind proceedings to a halt. Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania, says the criminal-justice system has become a “capacious, onerous machinery that sweeps everyone in,” and plea bargains, with their swift finality, are what keep that machinery running smoothly. Plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose “crime” may primarily be a matter of suffering from poverty, mental illness, or addiction.