A Right Deferred: Is Plea Bargaining Causing a 6th Amendment Crisis?

The Constitution’s Sixth Amendment guarantees the right to a speedy and public trial to all individuals accused in a criminal prosecution. But that right is infrequently exercised in the modern American justice system. In most jurisdictions, at both the federal and state levels, few criminal defendants go to trial. The vast majority of cases are settled without trial largely thanks to the widespread use of plea bargaining.

When a defendant agrees to a plea bargain, they enter a guilty plea in exchange for prosecutorial concessions, such as lesser charges or a reduced sentence.

There are several different types of plea bargain. One of the most commonly used is charge bargaining, where a defendant agrees to plead guilty to a lesser charge, often carrying either a lower maximum sentence or lacking a mandatory minimum sentence, than the one with which they were originally charged or presented. Charge bargaining can also involve a defendant agreeing to plead guilty to one or more of the original charges, with the prosecutor agreeing to drop the rest.

Another type of plea bargain is a sentence bargain, where the defendant pleads guilty with the agreement that either the prosecutor will recommend or the judge will impose a lower sentence or sentencing range. Plea bargains can also involve fact bargaining, where the prosecutor and defendant negotiate over the facts that will serve as the basis for a charge.

It’s a practice that has both supporters—who argue that reduced sentences benefit defendants and help streamline the justice system—and detractors—who argue the practice is coercive, enables corrupt prosecutorial behavior, and erodes the right to trial.