Plea bargaining is a central fixture of the American justice system—an estimated 98% of criminal cases are resolved through guilty pleas, with only 5% of defendants exercising their right to a jury trial.¹ According to a headnote for Bordenkircher v. Hayes, plea bargaining regards the negotiation between a prosecutor and defendant whereby the prosecutor encourages a guilty plea by offering a reduced charge in exchange.² By encouraging defendants to waive their right to an often time-consuming and expensive jury trial, plea bargaining helps cases move through the justice system in an efficient, cost-friendly, and purportedly humane manner. Yet the constitutionality of plea bargaining relies upon prosecutorial fairness and the uncoerced freedom of defendants to choose their plea—two assumptions that often do not hold true in practice. This article will argue that the prevalence of prosecutorial vindictiveness in plea bargaining renders its current iteration unconstitutional, especially regarding the disproportionate sentencing of minority defendants. Then, I propose possibilities for legal reforms that can help curb such prosecutorial misconduct. 

Historical Background: Brady v. United States

The Supreme Court’s decision in Brady v. United States (1970) provides critical legal grounding for the constitutionality of plea bargaining. In this case, defendant Robert Brady pleaded guilty to kidnapping under a statute that authorized the death penalty if he exercised his right to a jury trial and was thereafter found guilty.³ Brady contended his plea was coerced by the statute’s capital threat, rendering it involuntary.⁴ Yet Brady’s codefendant had pleaded guilty and could thus testify against Brady, providing a different incentive for Brady to plead guilty. Considering this context, the Court rejected Brady’s conviction, reasoning that his plea was a voluntary and rational choice, given the circumstances. Justice White’s majority opinion emphasized the mutual benefits of plea bargaining for defendants and the state, framing it as a legitimate, pragmatic tool rather than a coercive mechanism.⁵ 

According to the Brady majority opinion, a guilty plea under the system of plea bargaining must be “free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.”⁶ According to Justice White, the defendant’s desire to accept a lesser charge in exchange for pleading guilty does not violate this provision, assuming sound mental faculty and the absence of external coercion. The state and defendant “often find it advantageous to preclude the possibility of the maximum penalty authorized by law.”⁷ This makes sense: defendants would have little motivation to plead guilty without plea bargaining, leading to expensive and extended trials that overload courts. In sum, Brady v. United States illuminates the necessity of plea bargaining—or a similarly efficient workaround—to ensure the mobility of the American justice system. 

Challenging the Constitutionality of Plea Bargaining: Prosecutorial Vindictiveness

Despite the necessity of plea bargaining, many legal precedents have illuminated its major flaw: prosecutorial vindictiveness. The Supreme Court’s ruling in Bordenkircher v. Hayes (1978) exemplifies the unconstitutionality of such unchecked prosecutorial discretion. In this case, defendant Paul Hayes was accused of forging a $88.30 check.⁸ His prosecutor offered an initial plea deal of a 5-year sentence and threatened to seek indictment under the Kentucky Habitual Criminal Act if Hayes did not plead guilty, carrying a mandatory life imprisonment sentence due to Hayes’ two prior felony convictions.⁹ Hayes pleaded not guilty and was indicted under the Habitual Criminal Act, then objected to the constitutionality of the prosecutorial threat. In a 5-4 decision, the Court upheld the prosecutor’s actions, reasoning that in the “give-and-take” of plea negotiations, such prosecutorial threats do not equate to unconstitutional vindictiveness; thus, Hayes’ claim of unconstitutional threats was invalid.¹⁰ 

To contextualize this reference to prosecutorial “vindictiveness,” the Court previously held in North Carolina v. Pearce (1969) that the Due Process Clause of the Fourteenth Amendment “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.”¹¹ In other words, only new and relevant evidence could serve as a valid rationale for increasing initial charges—not the vengeful whims of the prosecutor. The majority opinion of Blackledge v. Perry (1974) also observed how “fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal”¹²; indeed, such retaliatory intent not only unfairly raises defendants’ charges but discourages them from pursuing their constitutional right to a trial in the first place. 

The Bordenkircher dissent offers several compelling reasons why this prosecutorial vindictiveness problem was present in Hayes’ case. Dissent author Justice Brennan argued that the prosecutor’s actions carried “a strong inference” of vindictiveness, strengthened by his verbal admission that the sole reason to press worse charges was to discourage Hayes from seeking a jury trial.¹³ Yet even if prosecutors do not admit to such retaliatory motives like in Hayes’ case, dissent author Justice Brennan argued that prosecutors still have ample reason to harbor vindictiveness in general in the dissenting opinion of United States v. Goodwin, four years later (1982). Specifically, Brennan reasoned how “the prosecutor would almost always prefer that the defendant waive such a ‘troublesome’ right [to a jury trial]. And if the defendant refuses to do so, the prosecutor’s subsequent elevation of the charges against the defendant manifestly poses a realistic likelihood of vindictiveness.”¹⁴ In addition, prosecutors have many personal motivations to encourage guilty pleas: maintaining a favorable win-loss record for career purposes, managing caseloads efficiently, and more.¹⁵ 

Considering these factors, assuming the lack of prosecutorial vindictiveness becomes dubious at best and untenable at worst. In general, determining good or bad intentions cannot serve as a sturdy logical defense because of its inherently vague nature. The definition of vindictiveness carries an intent to punish—in this context, prosecutors intend to punish defendants for exercising their “troublesome” right to a jury trial, an unconstitutional motivation. Furthermore, the sheer power prosecutors hold exacerbates the vindictiveness problem in plea bargaining. Prosecutors control essentially all aspects of the plea bargain—which charges to bring, what deals to offer, and whether to make charges harsher depending upon the defendant’s decision.¹⁶ This lack of regulation and potential personal biases paint a very worrying picture. 

The Bordenkircher majority opinion hypocritically recognizes this unconstitutionality, dubbing it as ‘necessary’: “this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest…is to persuade the defendant to forgo his right to plead not guilty.”¹⁷ Justice Brennan refutes this point directly and cogently, stating, “If the only objective of a state practice is to discourage the assertion of constitutional rights, it is ‘patently unconstitutional.’”¹⁸ Plea bargaining may be a permanent feature in American courts, and it may inevitably involve waiving certain rights—but that doesn’t mean we should forgo all semblances of constitutionality, least of all prosecutorial fairness. 

Social Implications: How Vindictiveness Exacerbates Inequality

The prevalence of prosecutorial vindictiveness in plea bargaining has profound social implications, particularly regarding racial and socioeconomic disparities. Research has shown that minority defendants, especially Black and Latino individuals, are disproportionately harmed by the coercive nature of plea bargaining—receiving harsher charges, being forcibly separated from families, being held in pretrial detention, and more. Because of these unfavorable circumstances, many defendants of color accept guilty pleas even when they may be innocent or facing excessive charges.¹⁹ A 2018 study showed that white defendants are 46% more likely than Black defendants to have their top misdemeanor charges dropped or amended to lesser charges. Black individuals are also 32% more likely to be incarcerated than white detainees; Latino individuals are 42% more likely.²⁰ While there are systematic factors at play beyond explicit prosecutorial bias, the wide berth of prosecutorial freedom allows entrenched racial biases to exacerbate and perpetuate these inequalities. Specifically, implicit racial bias motivates prosecutors to give harsher sentencing to defendants of color—another contributing factor to prosecutorial vindictiveness. ²¹

Minority defendants are also often less likely to have access to competent legal representation and have to rely on underfunded public defenders, which leaves them vulnerable to prosecutors’ leverage during plea negotiations. In many state courts, public defenders are overworked and underpaid; for instance, most public defenders in Missouri are expected to handle up to 100 cases a week,²² and the average public defender in Louisiana only has 7 minutes to work on an individual case.²³ The starting salary for a public defender in Florida is approximately $40K—if they support a family of four, their income would qualify public defenders to be eligible for a public defender themselves.²⁴ As such, they often take on multiple cases simultaneously for a fixed salary and thus have a personal incentive for quick resolution by coercing defendants into pleading guilty. Private lawyers, on the other hand, have generous hourly rates that incentivize longer and more meticulous trials. The over-policing of communities of color increases the likelihood of charges being brought against these individuals in the first place, compounding risks they face when engaging in plea bargaining.

Prosecutorial vindictiveness in plea bargaining disproportionately affects defendants of lower income, which statistically correlates with racial minorities. This is because defendants who cannot afford the time and resources to mount an adequate defense are often forced to accept plea deals simply to avoid the risk of a longer, more expensive trial. The economic burdens of prolonged legal battles make it nearly impossible for many such defendants to reject plea offers, even when unjust. 

In these cases, defendants’ Fifth Amendment rights become severely challenged if not violated, and they are forced to plead guilty by a system that punishes the already disadvantaged.²⁵ This creates a vicious cycle where socioeconomic status—inseparable from race—becomes a determining factor in whether a defendant can assert their constitutional rights against a prosecutor’s vindictive whims. Plea bargaining, in its current iteration, disproportionately punishes individuals of color and lower income, which, in principle, violates the Equal Protection Clause of the Fourteenth Amendment.²⁶ And again, prosecutorial vindictiveness in itself violates the Due Process Clause of the Fourteenth Amendment, not to mention how the whole system of plea bargaining eschews defendants’ right to a “speedy and public trial” guaranteed in the Sixth Amendment.²⁷ Especially considering these social corollaries, it becomes even more apparent that plea bargaining—inseparable from its prosecutorial vindictiveness—should be held unconstitutional. 

Legal Reform: Limiting Prosecutorial Power

While it is quite unrealistic to eliminate plea bargaining entirely, key reforms limiting prosecutorial power will help improve this system to be more equitable and just. One potential reform is to legally mandate prosecutorial disclosure of charge rationales, increasing the transparency of their motivations behind plea deals. Requiring prosecutors to provide written rationale holds them accountable for making plea deals based on objective evidence rather than bias or personal benefit. Documenting justifications in this way also provides a reliable source of information for defendants to press charges against unjust prosecutorial action. According to a study published in the Fordham Urban Law Journal, this approach allows prosecutors to “compare what factors actually drive their charging decisions to a normative legal framework so that they can adjust their behavior to better adhere to such standards.”²⁸ Making prosecutors’ charging policies, practices, and outcomes publicly available is a similar tactic that increases transparency and encourages fair play. Overall, such methods help illuminate the little-understood ‘black box’ of prosecutorial intentions, illuminating the way for further reform efforts. 

The chronic underfunding of public defender offices nationwide is a critical issue that drives the aforementioned inequalities. The Sixth Amendment guarantees the right to competent legal representation,²⁹ yet many public defenders are overburdened with excessive caseloads, insufficient financial resources, and understaffing, leaving them unable to mount robust defenses for their clients. Moreover, the low-income clients of public defenders are overwhelmingly minorities. For example, 75% of clients in San Francisco are people of color; in Philadelphia, 82% of clients are people of color.³⁰ In contrast, prosecutors are significantly more well-funded—in California, nearly $1 billion more is spent on prosecutors than public defenders.³¹ State governments should intentionally allocate adequate funds for public defender offices, ensuring that defendants—especially those from minority communities—receive high-quality legal representation, thereby leveling the playing field in plea negotiations. Access to competent and funded legal counsel should be given in plea deals. 

To further ensure this fairness of prosecutorial deals, courts could also implement blind plea bargaining procedures, where the defendants’ race, economic status, and other personal characteristics unrelated to the crime are not revealed to the prosecutor until the plea deal has been bargained. Only the relevant evidence and information regarding the defendant’s accused crime would factor into the prosecutor’s deliberations, such as prior conviction history, decreasing the possibility of racial bias unjustly influencing the case outcome. 

Prosecutorial decisions should be based on the crime, uninfluenced by factors like whether the defendant can afford a good lawyer. Reforms focused on transparency and accessibility help make this a reality. 

Conclusion

Plea bargaining, while a crucial part of the American criminal justice system, is deeply flawed due to the unchecked power of prosecutors and the prevalence of ensuing vindictive tactics. The coercive nature of plea bargaining undermines the constitutional rights of defendants, particularly those from minority and low-income backgrounds, perpetuating a cycle of inequality. By limiting and regulating prosecutorial discretion through mandating prosecutorial transparency, limiting charge stacking, expanding access to legal representation, and more, lawmakers can help reconcile real-life plea bargaining to its idealized, impartial version encoded in Supreme Court precedent. These reforms are necessary not only to protect the rights of individuals around the country but also to work towards true integrity and equality in the American criminal justice system.

1. “2023 Plea Bargain Task Force Report Urges Fairer, More Transparent Justice System,” American Bar Association, February 23, 2023, https://www.americanbar.org/news/abanews/aba-news-archives/2023/02/plea-bargain-task-force/. ↩︎
2. U.S.C.A.Const. Amend. 14. ↩︎
3. Brady v. United States, 397 U.S. 742, 753, 90 S. Ct. 1463, 1471, 25 L. Ed. 2d 747 (1970) ↩︎
4. Ibid ↩︎
5.  Ibid ↩︎
6.  Ibid ↩︎
7. Ibid ↩︎
8. Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978) ↩︎
9.  Ibid ↩︎
10.  Ibid ↩︎
11. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989) ↩︎
12.  Blackledge v. Perry, 417 U.S. 21, 33, 94 S. Ct. 2098, 2105, 40 L. Ed. 2d 628 (1974) ↩︎
13.  “Bordenkircher v. Hayes, 434 U.S. 357 (1978),” Justia Law, accessed January 26, 2025, https://supreme.justia.com/cases/federal/us/434/357/. ↩︎
14.  “United States v. Goodwin, 457 U.S. 368 (1982),” Justia Law, accessed January 26, 2025, https://supreme.justia.com/cases/federal/us/457/368/. ↩︎
15.  Naszya Bradshaw, “Racial Disparities in Plea Bargaining,” Scholarship @ Claremont, 2024, https://scholarship.claremont.edu/cgi/viewcontent.cgi?article=3495&context=scripps_theses. ↩︎
16. Lindsey Devers, “Plea and Charge Bargaining,” BJA, 2011, https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/pleabargainingresearchsummary.pdf. ↩︎
17. Bordenkircher, 434 U.S. 357, 364, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604 (1978) ↩︎
18.  Ibid ↩︎
19. “Research Finds Evidence of Racial Bias in Plea Deals,” Equal Justice Initiative, June 3, 2022, https://eji.org/news/research-finds-racial-disparities-in-plea-deals/. ↩︎
20. Bradshaw, “Racial Disparities in Plea Bargaining.” ↩︎
21. “Plea Bargaining and Racial Injustice,” Fair Trials, accessed January 26, 2025, https://www.fairtrials.org/app/uploads/2022/01/plea-bargaining-racial-injustice.pdf. ↩︎
22.  Phil McCausland, “Public Defenders Nationwide Say They’re Overworked and Underfunded,” NBC News, December 11, 2017, https://www.nbcnews.com/news/us-news/public-defenders-nationwide-say-they-re-overworked-underfunded-n828111. ↩︎
23.  “The Sad State of the Public Defender in America,” Houston Criminal Lawyers, August 25, 2016, https://www.texasdefenselaw.com/library/sad-state-public-defender-america/#:~:text=This%20ruling%20gave%20rise%20to,defenders%20are%20overworked%20and%20underpaid. ↩︎
24.  Ibid ↩︎
25.  “Fifth Amendment,” Constitution Annotated, accessed January 26, 2025, https://constitution.congress.gov/browse/amendment-5/. ↩︎
26.  “Fourteenth Amendment to the U.S. Constitution,” National Archives and Records Administration, accessed January 26, 2025, https://www.archives.gov/milestone-documents/14th-amendment. ↩︎
27.  “Sixth Amendment,” Constitution Annotated, accessed January 26, 2025, https://constitution.congress.gov/constitution/amendment-6/. ↩︎
28.  Trace Vardsveen and Tom Tyler, “Elevating Trust in Prosecutors: Enhancing Legitimacy by Increasing Transparency Using A Process-Tracing Approach,” Fordham Urban Law Journal 50, no. 5 (2023). ↩︎
29.  “Sixth Amendment,” Constitution Annotated. ↩︎
30.  Keisha Hudson and Manohar Raju, “Funding Public Defense Furthers Community Safety,” Newsweek, July 22, 2024, https://www.newsweek.com/funding-public-defense-furthers-community-safety-opinion-1927200. ↩︎
31.  Brendon Woods, “Prosecutors Have Nearly $1 Billion More than Public Defenders. That’s Not a Fair Fight,” San Francisco Chronicle, October 30, 2022, https://www.sfchronicle.com/opinion/openforum/article/public-defenders-funding-prosecutors-17541794.php. ↩︎