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Burn the Witch: the Cruel Efficiency of the American Plea Deal System

Mac Kang

Edited by Sahith Mocharla, Jia Lin, and Vedanth Ramabhadran

In colonial Massachusetts, Salem magistrates arbitrarily and erratically indicted individuals for witchcraft, a crime punishable by death. However, if the accused pleaded guilty to witchcraft – and in turn, agreed to confess and testify against others for their witchcraft – then they could live. In 1692, the standard for innocence was a conviction.         

Certain aspects of this colonial indictment institution still exist in the American legal system. The idea that one can “exchange” their sentence to be lighter for confessing a crime forms the rationale behind the majority of modern plea deal negotiations. However, similar to the Salem witch trials, these deals echo compromised justice, biased accusations, and the odds stacked against the defendant.

Often, a government will offer the defendant an alternative and typically lighter sentence to avoid trial if they plead guilty to the alleged crime [1]. A defendant will be faced with a charge – typically the maximum sentence possible if the defendant goes to trial – and will be offered the opportunity to plead guilty for a lesser charge by the prosecution. This process– resolved without a trial– is called plea bargaining, and constitutes the vast majority of criminal cases. The Bureau of Justice Assistance, part of the U.S. Department of Justice, published a summary in 2011 that found that 90-95% of cases are resolved with plea bargaining [2]. This number has been increasing: in 2023, the Report by the American Bar Association Criminal Justice Section found that in a given year had increased. Now 98% of criminal cases in federal courts ended with a plea bargain [3].

The prevalence of plea deals derives from their practicality: the number of cases brought by prosecutors far outnumbers the capability of the US justice system. For example, in 2010, the American Journal of Criminal Justice found that a reported burglary costs the judicial system an estimated $200 to $600 on average, while more serious felonies like homicide can be as expensive as $44,000 per case [4]. Thus, by defendants settling outside of court, the government saves the time and expense of a trial. This can also help the defendants by avoiding the time, cost, and publicity of a trial, as well as reducing the risk of harsher punishment. However, although the plea deal system is a necessary part of the judicial system, it often acts contrary to American ideals of justice and freedom. By placing prosecutors in charge of sentencing and privatizing the process, the system creates concerns about defendants who are under-informed about their rights and the severity of their sentence. Mistakes or misconduct by police or government officials typically only become apparent after a defense attorney gains access to materials such as witness interviews in preparation for a trial. Furthermore, the prosecutorial discretion inherent to plea deal bargaining allows prosecutors to unfairly influence a defendant’s choice, such as a bail recommendation to keep a defendant in jail, effectively pressuring a defendant to take a plea deal. Ultimately, the convenience of plea deals outlines a clear incentive for the judicial system to encourage the acceptance of plea deals, as opposed to the genuine care or justice for a defendant. 

The very system that allegedly helps defendants by saving the time and cost of a trial highlights the discriminatory potential of the plea deal system. Many defendants take the plea bargain because they do not have the time or resources to defend themselves in court, resulting in the reality of plea bargaining being disproportionately prevalent in lower socio-economic classes. Therefore, underprivileged and financially disadvantaged defendants are left to the largely private dealings of prosecutors and the police and are at liberty of the quality and care of their defense attorneys. All of which also raises a question regarding the (in)competence of defense attorneys:

Strickland v. Washington (1984) establishes the current standard that plea deals use to determine claims of ineffective counsel. In Florida, David Washington was convicted of murder by a state court and pleaded guilty. However, his legal counsel did not request character witnesses or a psychiatric evaluation, key pieces of evidence that could have informed mitigating circumstances that the court could rule on. Washington thus brought claims against his attorney for incompetence due to the failure to pursue evidence that could have lessened his sentence. While the Supreme Court ultimately ruled that Washington’s counsel was reasonable, they established two important standards for future evaluations of performance: (1) the counsel’s performance must be deficient, and (2) deficient performance must have prejudiced the defense to deprive the defendant of a fair trial. However, Justice Thurgood Marshall wrote a key dissent, asserting that the established standard was so malleable that it was arbitrary [5]. These competence standards for defense attorneys that drive the rationale for plea deals thus fail to truly provide a consistent and fair expectation of justice in plea deal bargaining. 

Other cases concerning the competence of defense attorneys in plea deals demonstrate how ambiguous standards for attorneys can lead to harm against the defendant. In Missouri v. Frye (2011), Galin Frye was convicted of driving while his license was suspended. Missouri prosecutors offered Frye two deals, but his lawyers did not inform Frye about either offer. Frye ultimately pled guilty and was sentenced to three years of prison, but appealed on the basis that his lawyer should have informed him of the previous deals. The Missouri appeals court agreed. The Supreme Court affirmed and held that the Sixth Amendment requires defense attorneys to disclose formal deals from the prosecution. The failure of Frye’s attorney to inform him brought harm against him as a defendant, and he was inaccurately advised to take a plea deal. In the majority opinion, Justice Anthony Kennedy pointed out how guilty pleas form the majority of criminal convictions, once again affirming the overwhelming prevalence of the plea deal system [6].

However, the reality is that the plea deal system is necessary: there is not enough time or resources to give everyone a trial. Not taking a plea deal can lengthen and extremize the sentences given to those in court, so there is an incentive for defendants to choose the “easier option.” Simply removing the system also would not fix the underlying infrastructural issues that often motivate those who accept plea bargains. Financial and time constraints, historically tied to race and lower socioeconomic status, would inhibit certain classes from pursuing justice to the fullest extent. The plea deal system is thus often indicted as a necessary evil. However, the difficulty of pursuing change should not be a reason to quit pursuing reform of the plea deal system entirely.

Criminal justice reform movements suggest several possible avenues of change. The American Bar Association Criminal Justice Section created the Plea Bargaining Task Force in 2019 to [7]. They advocate the state’s use of diversion programs that remove less serious criminal matters like drug convictions from the justice system, encouraging systems of rehabilitation and public service, which would dramatically reduce the burden on prosecuting courts–in some cases as much as 31%. [8] Other movements, such as including victim legal support groups in the bargaining process, remove some of the dangers of privatization by increasing transparency and ensuring that the defendant is adequately treated and informed. 

The United States can look to other countries as inspiration as well. In New Zealand, for example, plea bargains are referred to as “sentencing indications” and follow a more public format. Both sides will present their case to a judge, and the judge will rule on the proper sentence for a defendant, which the defendant can then choose to accept or proceed to trial. A system like this takes away the dominating power of the prosecution in plea bargaining and returns it to the accused. This ensures that the defendant is more fully informed of their sentencing. 

Reforming the plea deal system ultimately has important implications for the majority of mass incarceration as well, and can encourage the future of a more equitable justice system.


[1] Plea bargaining, U.S. Attorneys | Plea Bargaining | United States Department of Justice (2023), (last visited Mar 18, 2024). 

[2] Lindsey Devers, Plea and charge bargaining Bureau of Justice Assistance (2011), (last visited Mar 18, 2024). 

[3] Thea Johnson, 2023 plea bargain task force report American Bar Association (2022), (last visited Mar 18, 2024). 

[4] RAND, first estimates of judicial costs of specific crims, from homicide to theft, (last visited Mar 20, 2024).

[5] Strickland v. Washington, 466 U.S. 668 (1984), Justia Law, (last visited Mar 18, 2024). 

[6] Missouri v. Frye, 566 U.S. 134 (2012), Justia Law, (last visited Mar 18, 2024). 

[7] Lucian Dervan et al., ABA CJS Plea Bargaining task force American Bar Association (2023), (last visited Mar 18, 2024). 

[8] Overview of federal criminal cases, fiscal year 2021, United States Sentencing Commission (2022),,31.3%25%20of%20the%20total%20caseload. (last visited Mar 18, 2024).

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