How Plea Bargaining and Bail Weaken the Justice System

Kayla Winer

Plea-bargaining and bail are both tactics used by court systems in order to speed up the

process of conviction. When someone is arrested, they either must await trial in jail or pay a cash

bail and await trial at home. With a plea bargain, cases are resolved out of court by having both

sides come to an agreement (American Bar Association, n.d). Plea bargains are meant to allow

defendants who are guilty to admit so and to receive a punishment compared to the expected

sentence if they had gone to trial, but skip the long wait (Gerstein, 2013). Unfortunately, much of

the time this isn’t the case. Much of the time, the courts offer defendants a plea bargain: plea

guilty, receive a lesser sentence, accept the criminal record, or go to jail. In this paper, I will

argue that because of the high bail rates and high offers of plea bargains, it is those who are poor

who suffer, and the justice system becomes flawed.

When someone is arrested, they are offered to either await their trial in a county jail, or

provide a cash bail in order to return to their lives until their court date. But often, people cannot

afford these bonds. Even when bail is set at $500 or less, only 15% of defendants are able to

come up with the money (Pinto, 2013). Much of the time, they are offered a plea bargain. And

this plea bargain is often much less than what they might expect if they went to trial. It is

common for sentences from trial to be much more severe, even without mandatory sentences. A

2013 Human Rights Watch study found that the average drug sentence for defendants who

proceeded to trial in 2012 was three times longer (an increase of ten years) than for defendants

who pleaded guilty (Dervan, 2015). In that study, a federal judge in New York described the

sentences defendants face if they reject plea offers as “so excessively severe, they take your

breath away.” For example, a man named Orville Lee Wollard used a legally owned weapon in
his own home to fire a warning shot after his daughter’s boyfriend assaulted both he and his

daughter. No one was injured. He rejected a plea bargain of five years probation, believing that

he would be shown to have been in the right. However, the court didn’t permit him to show

evidence, and he was sentenced to a mandatory minimum sentence of twenty years (Dervan,

2015). It seems that the courts try to punish those who choose to go to trial, and this is known as

the “trial penalty”. In many cases, knowing this could influence a defendant into taking the plea

deal, because they know that if they try to prove their innocence, but are proven guilty, their

sentences will be much longer. In 2012, Brian Banks was accused of rape and was faced with a

choice: take a plea bargain at seven years maximum at prison, or go to trial and risk forty years

to life in prison. He took the plea bargain. It was later found that he was innocent (Dervan,

2015).

Over 97% of convictions in the federal system arise from guilty pleas, and in the state

system this number is 95% (Dervan, 2015). Tyrone Tomlin, though to a much lesser degree, was

offered a similar deal to Banks when police found him outside a discount store with a straw that

was for his drink. He was accused of having drug paraphernalia and offered a deal. Either he

could admit to possession of a controlled substance and spend 30 days at Rikers, pay $1500 in

bail and await trial, or spend his time waiting for trial in county jail. Without the money to pay,

and refusing to add another conviction to his record, he awaited trial. He spent three weeks in

jail, unable to work his job to make a living. In the process, he also missed Thanksgiving dinner

and was beaten up in the jail. Three weeks later, they found him innocent, and that the straw was

just that—a straw. The arrest in general seemed ludicrous, but moreover, because he was too

poor to present bail, he had to make the decision between falsely pleading guilty and staying in

jail.
 Each year, about 7.8 million people are held in jail before trial. At any given moment,

450,000 people are in pretrial determination in the United States (Pinto, 2015). A 2012 report by

the New York City Criminal Justice Agency found that in non-felony cases in which defendants

were not put in jail before their trials, half were convicted. When defendants were forced to go to

jail to await their trial, the conviction rate rose to 92%. (Pinto, 2015). This is because so many

decided to accept plea deals instead of await trial. Many times, bail is set much too high for the

defendant to afford. The average wait time for trials is a month (Gerstein, 2013). When offered

the chance to return to one’s day-to-day life, many will accept a lesser sentence and the chance to

go free rather than spend time in jail waiting for trial, whether they are guilty or not.

And much of the time, these people are not guilty. The New York City Council started a

fun to bail out low-level offenders, setting aside $1.4 million to do so. More than half of the

Freedom Fund’s clients saw their chargers completely dismissed, and not one client went to jail

on their charges. Moreover, 96% of those that the fund supported made it to all of their court

appearances, a higher percentage than those who post their own bail (Pinto, 2013). These people

are not criminals, but are simply too poor to post bail. But when one is faced with the choice of

losing their home or job, they will often choose to plead guilty instead. When defendants are

pleading guilty instead of being given a fair trial, the justice system no longer works. One is no

longer judged on whether they are guilty or not, but whether they are wealthy or not.

Furthermore, when one cannot afford a lawyer, the responsibility of helping goes towards

public defenders. But with a couple of hundred cases passing through just Brooklyn each day,

public defenders rarely get to spend more than ten minutes with each defendant (Pinto, 2013).

This causes a lot of problems. The defendants often do not have time to explain themselves fully.
Public defenders are often overwhelmed, exhausted, and do not have time to take a good look at

the case. And because of this, the defendants don’t get a real chance at justice.

One may ask: how can this system have become to corrupt? The answer lies in the

overwhelming amount of convictions given and how little time there is to go through all of them.

In Pike County in 2015, there were about 700 indictments. In Lincoln County, there may be forty

trial days per year. There are not enough jurors, or days that the courts are available, to get

through every case. According to the federal government, 90-95% of felony cases result in plea-

bargaining. In Lincoln County, 11 of the 18 felony cases went for a plea deal (Daily Leader,

2015). According to the courts, it also helps the courts when there is no guarantee that the

defendant will be proven guilty due to lack of evidence, so they will offer a plea deal in order to

get the defendant to accept. However, this naturally assumes that the defendant is guilty. District

14 Attorney Dee Bates said that they avoid the lesser convictions and those they believe not to be

guilty (Daily Leader, 2015), but according to the numbers this does not add up. Firstly, if they

believed the defendants to be not guilty, why would they be there in the first place? Secondly,

even in non-federal cases, with smaller charges, the percentage of convictions with guilty pleas is

95%. Bates also discusses how those who plead guilty “deserves some credit for their admission”

and “it is encouraged” for them to plead guilty, as they “are more likely to be rehabilitated”

(Daily Leader, 2015). But if poor people who cannot afford bail are pleading guilty simply to get

out of going to jail before trial, then these people are not guilty. And due to their records, they

are less likely to be able to get jobs, suffer more consequences from their records, and in the

future are looked at as criminals. When these defendants had money to help them with bail, half

of them had their charges dropped. This is an injustice because it tells the courts that because

these defendants cannot afford bail, they are likely guilty, due to their admission of guilt. It
seems that it is the poor who must suffer at the hands of the courts. Those who are wealthy often

see their convictions go to trial, and therefore are often let off. Much like in a lot of the American

system, the wealthy get special treatment.

The use of bail and plea-bargaining in the American justice system is skewed towards the

wealthy, and creates an unfair system in which the poor are again and again forced to take guilty

pleas because they cannot afford bail, or because they fear a worse sentence. The courts know

this, and encourage it, because they do not have the time to go through every case. It creates a

flawed system that no longer encourages justice but encourages cheap and fast ways to get

everyone through the system with as little work as possible. This is one of the reasons that the

justice system in America is broken, and why so many poor people suffer.
References

American Bar Association. (n.d.). How Courts Work. Retrieved from

http://www.americanbar.org/groups/public_education/resources/law_related_education_n
etwork/how_courts_work/pleabargaining.html

Charlie Gerstein, Plea Bargaining and the Right to Counsel at Bail Hearings, 111 Mich. L. Rev.
1513 (2013). Available at: http://repository.law.umich.edu/mlr/vol111/iss8/4

Dervan, L. (2015, December 3). The Injustice of the Plea-Bargain System. Wall Street Journal.
Retrieved from http://www.wsj.com/articles/the-injustice-of-the-plea-bargain-system-
1449188034

Daily Leader. (2016, March 5). Plea bargains aid overworked courts. Retrieved from
http://www.dailyleader.com/2016/03/05/plea-bargains-aid-overworked-court/

Pinto, N. (2015, August 13). The Bail Trap. New York Times. Retrieved from
http://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html?_r=0