Implications of Plea Bargaining in the Criminal Justice System

Authors: Mary D'Alleva, MA/MSc and Sydney Sanders

April 14, 2025

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A plea bargain (sometimes called ‘plea deal’ or ‘plea negotiation’) is an agreement between a defendant and prosecutor in which the defendant pleads guilty to some or all of the charges they face in exchange for a lighter sentence or some type of prosecutorial concession (Carson, 2018). The three different types of plea bargains include: charge bargaining: defendant pleads guilty to reduce the charges; sentence bargaining: in return for pleading guilty, the defendant is offered a different charge; and count bargaining: defendant pleads guilty to some of the charges in exchange for other charges being dropped. As part of the negotiating process, a prosecutor will consider the nature of the offense, the strength of the case, and the defendant’s criminal history. Plea bargains are fundamental to the functioning of the criminal justice system. Because the plea bargain negates the need for a jury trial, it is often seen as a money- and time-saving measure for the legal system. According to a report from the American Bar Association, roughly 98% of convictions are the result of guilty pleas (ABA, 2023). While plea bargains may be a common way to handle cases, there remains controversy over the effectiveness and equity of using plea bargains. The controversy around plea bargaining stems from Constitutional concerns, effectiveness of legal counsel, fairness in implementation and impact of racial bias. 

 2019 Plea Bargain Task Force

To address these persistent criticisms of plea bargains and the plea bargain system, the American Bar Association created the Plea Bargain Task Force in 2019. It aimed to create both comprehensive policy-oriented objectives for the criminal justice system and provide particular recommendations for changes in the way plea bargaining functions within that system. They intentionally examined these issues from the perspectives of all major stakeholders involved in the criminal justice system, including prosecutors, defense attorneys, defendants, judges, victims, and others.

This task force was the first collaborative venture to thoughtfully and comprehensively examine the state of plea bargaining in the United States. It included members representing diverse perspectives within the criminal justice system, from prosecutors to defense attorneys, judges, academics, and members of several advocacy organizations and think tanks, including the Southern Poverty Law Center, Council on Criminal Justice, National Association of Criminal Defense Lawyers, Innocence Project, Fair Trials and the Cato Institute.

2023 Plea Bargain Report

After three years of collecting and reviewing testimony from those impacted by the plea bargain system, and with insights from experts on plea bargaining, state and federal criminal procedures, scholarly and legal reports on plea bargaining, and more, the Plea Bargain Task Force published its Plea Bargain Task Force Report in 2023. 

Although plea bargaining differs throughout the United States, the Task Force was able to  identify and address consistent concerns with plea bargaining that are common throughout a broad range of jurisdictions, as well as provide explicit guidance on how to address challenges while continuing to “promote justice, transparency, and fairness.” 

The primary outcome of the Report is “The Principles.” Despite plea bargaining varying broadly across the country, the Task Force deemed it “vitally important” to form a single set of Principles to guide plea bargain practices generally. The goal is for these Principles to be shared widely throughout the criminal justice community in the hopes of influencing practices and decisions in the plea bargain process moving forward. These Principles represent the Task Force’s conclusions on how plea bargaining should operate within the larger criminal justice system, one of which is “based on the fundamental Constitutional right to a trial.”

To understand the motivating factors behind these Principles, it’s helpful to organize them into broad categories based on the equity issues they address with examples to illustrate.

Transparency and Constitutionality

Principles 1, 7, 9, and 10 address procedural concerns around how plea bargaining is implemented and where it’s important to consider Constitutional implications. Reports funded by the MacArthur Foundation in 2022 examined outcomes and procedures around plea bargains in Philadelphia, Milwaukee, and St. Louis. The research determined that these deals happen with little public transparency or procedural documentation.

Principle 1

“A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system.” 

This Principle explores the fundamental idea that criminal trials, as opposed to plea bargains, allow the public to observe the criminal justice system, which in turn, promotes transparency within the system, holds the system and its participants accountable for their actions, upholds justice by upholding one’s Constitutional right to a trial, and creates legitimacy in the criminal justice system by strengthening public trust and confidence. 

Principle 7

“There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.”  

To ensure a defendant’s plea is voluntary and informed, achieved without impermissible coercion, and with a comprehensive understanding of the consequences of their guilty pleas, it is important for the plea bargain process to be done with adequate measures such as transparency and extensive documentation. 

Principle 9

“Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.”

In the name of transparency and fairness, all defendants should have access to the full discovery materials in their case and be given adequate time to review them. This allows defendants to make an informed decision when considering a plea agreement. This ensures that defendants are as informed as possible about the evidence that can be used against them at trial and can decide for themselves whether or not accepting a plea is the best option for them.

Principle 10

“Although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement.”

To enter into a plea bargain, individuals must waive Constitutional rights. Two of the main Constitutional Amendments related to plea bargaining are the Fifth and Sixth Amendments. Defendants waive three Constitutional rights protected by these amendments in order to enter into a plea bargain: the right to a jury trial, the right against self-incrimination, and the right to confront witnesses. The Fifth Amendment guarantees the right to due process under the law (Cornell Law, 2017). These amendments are fundamental to the freedoms and rights that many consider defining of society in the United States. 

The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law,” (Cornell Law, 2017). The intention of the Sixth Amendment is to ensure that anyone accused of a crime can have their day in court - meaning, a public accounting of the crimes presented before a judge and a jury of peers, with legal counsel present. While seemingly self-evident in the modern day, the Sixth Amendment set a precedent of transparency and accountability meant to limit “backdoor” dealings, rushed judgements, and false accusations. A “speedy trial” does not mean that the trial has to move quickly, but that the defendant won’t be left waiting overly long for their day in court. Justice within the legal framework of the courts and the Sixth Amendment means that defendants have a right to go before a judge and have their case heard by a jury. Once a defendant waives the right to a trial to enter into a plea deal, they no longer have the accountability or transparency that goes along with it. While a judge needs to approve a plea deal, there is no “jury of peers” present; there is no public weighing of evidence, and no witnesses are cross-examined by the defense attorney in court.

The right to due process is the overarching Constitutional protection, establishing that individuals may not be, “deprived of life, liberty, or property, without due process of law,” (Cornell Law, 2017). Specific to this scenario is procedural due process, “the procedures the government must follow in criminal and civil matters,” (Busby, 2018). This means it is a Constitutional requirement for the government (by extension law enforcement and criminal justice systems) to follow three basic steps if they are going to deny a citizen the right to life, liberty, or property. They must provide notice, provide an opportunity to be heard, and decisions must be made by a neutral decision-maker. Government entities must also demonstrate there exists a standard of conduct for their actions. The specific steps of due process reflect much of what happens in a trial; however, these steps differ based on state action versus federal action, and criminal versus civil proceedings. Therefore, if an individual waives the protections of the Fifth Amendment in order to enter into a plea deal, while they are not waiving the right to due process, they are waiving some of the protections held within procedural due process (such as those that address court proceedings: a neutral and unbiased court of justice, the right to request a dismissal of the charges, the right to present evidence and witnesses in defence, and the right to see the opposing side’s evidence.) Since a plea deal may happen at various points within the proceeding, a defendant may or may not have had the opportunity to take full advantage of the protections of due process.

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When a defendant forgoes a right to a trial, they also forgo the right to confront a witness. The Sixth Amendment states that any criminal defendant suspected of committing a crime has the right to confront the witness in a criminal action. This means the right to have a witness presented at trial and the right to have the witness cross-examined by legal counsel. Cross-examination and presentation of witnesses are fundamental to ensuring transparency in prosecution and testing the truthfulness and accuracy of witnesses and evidence in front of a jury (Busby, 2018). In Supreme Court Case Mattox v. United States, 156 U.S. 237 (1895), the court established that one of the main purposes of this right is to provide an opportunity for jurors to evaluate the credibility of a witness through the opportunity for cross-examination (Mattox v. United States, 156 U.S. 237 (1895), n.d.).

Principle 9 highlights the importance of procedural due process in advocating for a defendant’s access to exculpatory evidence. In having access to the evidence against them, including any witness statements (Sixth Amendment), defendants have the opportunity, with legal counsel, to maintain Constitutional protections while making an informed decision. This idea is reinforced by Principle 7, in the importance of a transparent process free of coercion or manipulation. Ultimately, as Principle 1 indicates, the most transparent element of the criminal justice system is a trial by jury; this right should never be waived lightly or without complete information.

Coercion and Long-term Ramifications

Principles 2, 5, 6, 8, and 11 highlight the strategy behind plea bargaining and how they are presented to defendants. This section illustrates the element of coercion and the mindset of defendants in the plea bargaining process. It highlights the role of public defenders and legal counsel and how adequate legal counsel becomes a factor in whether a defendant may plead guilty or not. The task force presents the guilty plea as a prosecutorial strategy. A report titled, “Exploring Plea Negotiation Processes and Outcomes in Milwaukee and St. Louis County,” described the process of plea negotiation as, “as more of an art than a science,” and that any guidelines prosecutors are given are largely informal, with a “substantial amount of discretion” allowed in their decision-making (Stemen et al., n.d.).

Principle 2

“Guilty pleas should not result from the use of impermissibly coercive incentives or incentives that overbear the will of the defendant.”

This Principle offers guidance for plea bargain procedures, positing that incentives proposed for pleading guilty are fair and approachable. Since most defendants do not have legal backgrounds themselves, or might struggle to gain adequate legal representation, the incentives put forward during the plea bargain process might be confusing or overwhelming. It is the job of the parties involved to ensure those incentives are not used to coerce the defendant into pleading guilty or overbear them to the point of pleading guilty. 

Principle 5

“The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.”

This Principle highlights the need for actors within the criminal justice system to remain aware of the idea that plea bargains influence defendants to plead guilty for a myriad of reasons, and could persuade someone to plead guilty of a crime they did not commit. Thus, is it vital that prosecutors, defense attorneys, judges, and others within the criminal justice system, approach plea bargaining and guilty pleas with care and caution. 

Principle 6

“A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.”

This Principle addresses one of the arguments previously discussed against plea bargaining, that defendants will oftentimes enter a guilty plea prior to receiving any legal counsel. If this outcome is due to a lack of adequate representation, this is a violation of the defendant’s legal rights. The Task Force also notes that a defendant’s legal counsel should be given adequate time and resources to be able to effectively investigate their client’s case and advocate for them during the plea bargaining process. 

Principle 8 

“The use of bail or pretrial detention to induce guilty pleas should be eliminated.”

Because defendants typically want to spend the least amount of time in jail as possible, both bail and pretrial detention can have a large influence on a defendant’s decision to plead guilty. Therefore, using bail or pretrial detention to induce a guilty plea is unethical and should not be common practice. 

Principle 11

“An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.”

Defendants must understand the full extent of the consequences of their guilty plea in order for it to be considered done with the knowledge, understanding, and willingness of the defendant. 

According to an Urban Institute report on prosecutorial decision making in plea bargaining in Philadelphia, almost half of Assistant District Attorneys surveyed thought innocent people “sometimes” or “often” accepted guilty pleas (Matei et al., n.d.). Additionally, in a survey of people who had accepted pleas found that defendants often felt pressured to do so regardless of their claims of innocence, with the speed of resolving a case being the preliminary factor (Matei et al., n.d.). According to this report, “People going through the criminal legal system are often not given enough information or time to properly understand the consequences of accepting a plea and are not offered the opportunity to advocate for themselves. People who accept pleas are heavily pressured by long case processing times and the certainty of outcomes plea offers can afford. Pretrial custody also has a coercive effect on defendants and pushes some to accept plea offers to leave custody quicker” (Matei et al., n.d.). Furthermore, the entire criminal justice process influences a prosecutor's decision-making: how strong the case is (which may or may not be tied to guilt or innocence), the reputation of the judge assigned to the case as related to trial penalties, the credibility of officers assigned to the case (Matei et al., n.d.). 

It’s important to remember that in a plea deal, the defendant pleads guilty to some or all charges in exchange for a lighter sentence or a reduction in the seriousness of the charges. This guilty plea, even if it does not come with a jail sentence, will follow a defendant for the rest of their lives. Depending upon the seriousness of the charges, a guilty plea may lead not only to incarceration, but fines, loss of voting rights, loss of parental rights, loss of access to public assistance, employment, or housing. A conviction stays on public record unless getting the record expunged is part of the plea deal (What Rights Does a Felon Lose after Conviction?, 2025). The Fifth Amendment protects against self-incrimination, which means an individual can’t be compelled to give testimony against themselves, or serve as a witness against themselves. Plea deals rely upon an individual waiving this right so that they can plead guilty to some or all charges; essentially they must “incriminate themselves” to enter into the plea bargain. 

Sentences and Charges

Principles 3 and 4 focus on sentences and charges, and how these impact decisions to accept plea bargains. A look at data related to racial disparities can help illustrate equity issues surrounding plea bargains.

Principle 3

“In general, while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.”

Principle 3 addresses sentencing disparities. Specifically, the idea that if a defendant goes to trial and is found guilty, their sentence would be much harsher than if they have pleaded guilty. The Task Force argues that this disparity discourages defendants from choosing to go to trial, therefore undermining the integrity of the criminal justice system itself. In order to bridge this gap, sentences for guilty pleas and convictions must be comparable.

Principle 4

“Charges should not be selected or amended with the purpose of creating a sentencing differential, sentencing enhancement, punishment or collateral consequence to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.”

Similar to Principle 3, Principle 4 addresses disparities between plea bargain proceedings and trial proceedings. However, this Principle focuses on charges. Prosecutors are legally allowed to not charge, dismiss, or move for the dismissal of charges if a defendant agrees to a plea deal. Similarly, prosecutors can threaten a defendant during plea negotiations with more serious charges during trial if the defendant doesn’t plead guilty. In addition, if the defendant doesn’t plead guilty, no constitutional violation occurs when the prosecutor follows through with that threat. Because of this, defendants might be influenced to plead guilty to incur less charges and subsequently receive a lesser sentence. To remedy this, the Task Force asserts that changes in charges should not be made for the purpose of lessening or increasing sentencing, influencing the defendant to plead guilty, or dissuade them from pursuing a trial. 

In the 2022 reports funded by the MacArthur Foundation, researchers examined data related to race in plea deals. According to the Urban Institute, “Black people who accepted pleas were more likely to have custodial outcomes and longer sentences than white people” (Matei et al., n.d.). Many of the Assistant District Attorneys (ADAs) interviewed for this report in Philadelphia recognized racial disparities within the legal system and how this impacts plea deals, with some also recognizing implicit bias as a potential factor in how ADAs make decisions. 

“Exploring Plea Negotiations Processes and Outcomes…” further explored how racial bias impacts the criminal justice system. While both prosecutors and public defenders indicate there is a lot of training around race and bias available, some have posited that racial bias that shows up as over-policing of communities of color leads to a higher proportion of people of color within the system. Furthermore, they pointed out if socioeconomic status and race are connected factors, people of color may not be able to afford to pay misdemeanor tickets and will end up in the system (Stemen et al., n.d.). Within the UMSL Loyola report, the racial data for St. Louis indicated that Black people were charged with more charges (77%) and more severe charges (72%) than white people at 69% and 64% respectively (Stemen et al., n.d.). 

While white people in Milwaukee experienced greater reductions in the number of charges relative to Black people in Milwaukee, they were less likely to have the severity of their charges reduced. However, analyzing racial disparities is not straightforward. In St. Louis County, while about one quarter of the population is Black, over 55% of individuals arrested and booked are Black (with 66% of the population white and 45% booked and charged). The report found, however, that white people were more likely to receive a higher punishment compared to Black people and more likely to have their cases accepted (ie. not dismissed or reduced), and result in a guilty plea. The fact that Black defendants were more likely to receive a less punitive outcome and less likely to receive the more punitive ones may be related to the higher likelihood of being arrested in the first place. Furthermore, they also are more likely to face a greater number and severity of charges  at the screening stage. This means they are more likely to have their charges not accepted in the first place, based on prosecutorial discretion. 

In the article “Criminalizing Race: Racial Disparities in Plea-Bargaining” (Berdejó, 2018), the author focuses specifically on procedure from initial filing of charges to conviction (data from Wisconsin Circuit Courts). Berdejo’s data presents “significant racial disparities in this stage of the criminal justice system” with white defendants 25%  more likely than black defendants to have initial charges dropped or reduced (Berdejó, 2018). Other statistics that illustrate racial disparity include: white defendants are less likely than black defendants to be convicted of a felony and for misdemeanors, and more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all. In terms of a defendant’s criminal history, white defendants with no prior convictions receive charge reductions more often than Black defendants with no prior convictions, but that disparity does not exist with prior convictions. The author did note that racial disparities in plea bargain outcomes are more evident in misdemeanors and low-level felonies than severe felonies. Much like the conclusions of the MacArthur reports regarding the potential for implicit bias in various points along the criminal justice system, this article suggests that prosecutors may be using race as a determinant for whether a defendant is likely to commit crime again.

In a 2017 Justice Quarterly article, “Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process,” researchers shared results of a data study on felony plea and trial cases (represented by public defenders) in a Florida circuit court (one of Florida’s larger counties) (Metcalfe & Chiricos, 2017). Drawing on a different angle regarding racial disparity surrounding plea bargains, researchers suggest that, “[B]lacks, and [B]lack males in particular, are less likely to plea, and are expected to receive a lower value for their plea. Also, the factors that predict the likelihood of a plea are substantively different across race (Metcalfe & Chiricos, 2017). The article also presents a comprehensive overview of research to date regarding plea bargains, citing for example research on structural bias in the sentencing of felony defendants, “One result, as noted by Sutton (2013), is that ‘pretrial decisions are particularly vulnerable to bias because they are governed more by informal than formal-legal rules,’” (Sutton p. 1208 qtd. In Metcalfe & Chiricos, 2017). 

Taking together prosecutorial power, potential for manipulation, potential for implicit racism, and the role of defense counsel, this oft used tool of the criminal justice system may not, in fact, be implemented reliably or fairly. The lack of documentation and formalization in plea bargaining leaves room for the influence of bias, and lacks the public transparency of most trials.

Training and Accountability

Principles 12, 13, 14 look to the future of the legal profession in how lawyers are trained and the professional expectations around their positions. Law students become prosecutors, public defenders, district attorneys, and judges. A fairer system begins with changing how these professionals are prepared, the values that are integrated into the system, and the checks and balances established.

Principle 12

“Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.”  

Understanding these Principles is crucial to ensuring plea bargaining throughout the United States is done ethically and upholds the rights of defendants. Therefore, it is vital that law students, and all participants in the legal process, are adequately trained on the plea bargain process in a way that upholds the findings of the Task Force. 

Principle 13 & Principle 14

“Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.”

“At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.”

Transparency and accountability should be cornerstones of the entire legal process and criminal justice system, including plea bargaining. Because of this, it is crucial that extensive documentation and data collection of the plea process, including individual pleas, history of plea offers, etc. is prioritized. This data can be used not only as a way to protect the all parties involved, but additionally, monitor and assess the reality of plea bargaining – specifically, the biases, racial and otherwise, that play a role in the plea process. This will not only help uncover  biases, but also create opportunities for meaningful change. Additionally, thorough documentation and data collection allow for the criminal justice system to monitor the plea process and ensure it is being carried out ethically. With the Principles, all actors in the plea bargain process can uphold the rights of defendants and maintain the integrity and accuracy of the criminal justice system. 

Conclusion

As evidenced by these 14 Principles, conducting plea bargains in a responsible, ethical, and equitable manner is the only way to ensure the criminal justice system is upholding the rights of those participating in it. Guaranteeing transparency and constitutionality in the plea bargain process allows for defendants to have all of the necessary time and information needed to make an informed decision.  

In order to uphold these Principles, it is vital that defendants are adequately supported throughout this often complicated process. Hundreds of thousands of defendants rely on public defenders for legal support and representation. Roughly four out of five criminal defendants don’t have the resources to hire a lawyer and instead use public defenders or court-appointed lawyers. These lawyers ensure that all defendants have the right to legal counsel; however, with the extremely heavy caseloads carried by most public defenders, some defendants fall through the cracks. For example, Jack Talaska, a public defender in Louisiana, had 194 cases at one time, totalling almost 10,000 hours, or five work-years needed to handle all of his cases. Studies produced in four states (Study 2, Study 3) say that public defenders have two to almost five times as many cases as they should. Because of this, public defenders commonly don’t have enough time to devote fully energy or resources to each case, at no fault of their own. 

In conjunction with training on the use of the Principles, we must support the crucial work of public defenders, and provide them with enough time and resources to ensure the ethicality and success of the plea bargain process. Public defenders “are present at every step of the process — not just public hearings, some of which might be held in the middle of the night — but the behind-closed-doors plea bargaining processes that resolve about 95 percent of all cases. They see the charges that prosecutors threaten and then withdraw, the factors that seem to shape prosecutors’ decisions about when they drop charges and when they move forward, and so on.” However, it is not only the job of defense attorneys to uphold this process, all actors in the criminal justice system must work together to address the systemic issues that occur within the plea bargain process.

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Glossary

• Accountability: the fact or condition of being accountable; responsibility

• Adjudication: a legal ruling or judgment, usually final; the process of settling a legal case or claim through the court or justice system

• Amendments: a change or addition designed to improve a text, piece of legislation, etc.

• American Bar Association: a voluntary association of lawyers and law students in the United States that promotes justice, ethics and professionalism in the legal profession. 

• Breach of Contract: a violation of any of the agreed-upon terms and conditions of a binding contract

• Civil Proceedings: legal disputes between parties seeking resolution through the civil court system. 

• Coercion: the use of force to persuade someone to do something they are unwilling to do

• Collateral Consequences: legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.

• Confront Witnesses: The Sixth Amendment provides that a person accused of a crime has the right to confront a witness against him or her in a criminal action . This includes the right to be present at the trial and cross-examine the witness.

• Constitutional Right: a prerogative or a duty, a power or a restraint of power, recognized and established by the United States Constitution. 

• Constitutionality: the quality of being in accordance with a political constitution

• Criminal Justice System: Criminal justice is the delivery of justice to those who have been accused of committing crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other crimes, and moral support for victims. The primary institutions of the criminal justice system are the police, prosecution and defense lawyers, the courts and the prisons system.

• Criminal Proceedings: involve the government deciding whether to punish an individual for a “crime” - a violation of a law prohibiting the act.

• Cross-Examination: the legal process of interrogating a witness that has been called to testify by the opposing party in a legal proceeding. 

• Defendant:  a person or group against whom a criminal or civil action is brought: someone who is being sued or accused of committing a crime

• Discovery: a pre-trial phase in the legal process where parties obtain information and evidence from each other to prepare for litigation

• Discretion: the right or ability to decide something.

• Dismissal of Charges: In criminal law, charges are said to be dismissed when a prosecutor or judge decides not to continue pursuing a case after a trial has started. Charges may be dismissed by a prosecutor for several reasons, including evidentiary issues or plea negotiations. A judge may dismiss charges for, among other reasons, missed deadlines, 4th Amendment violations, or lack of jurisdiction.

• Disparities: a difference in level or treatment, especially one that is seen as unfair

• Docket: a calendar or list of cases for trial or people having cases pending

• Due Process: refers to the legal requirement that legal matters be resolved according to established rules and principles of fairness and justice. It applies to both civil and criminal matters and protects individuals from arbitrary actions by the government.

• Exculpatory Evidence: evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant. In other words, the evidence is favorable to the defendant. 

• Expunged: Remove an arrest or conviction from a person’s public criminal record.

• Federal Action: refers to the United States Government, its legislative, executive, and judicial branches, and the statutes, rules, and regulations enacted by those branches of government.

• Fifth Amendment of the Constitution: The Fifth Amendment (Amendment V) to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other amendments, in 1791 as part of the Bill of Rights.

• Impermissible: too bad to be allowed

• Implicit Bias: refers to the beliefs and attitudes that affect our understanding, actions and decisions in an unconscious way. Implicit biases are unconscious attitudes and stereotypes that can manifest in the criminal justice system, workplace, school setting, and in the healthcare system.

• Institutionalized Racism: discrimination or unequal treatment on the basis of membership in a particular ethnic group (typically one that is a minority or marginalized), arising from systems, structures, or expectations that have become established within an institution or organization.

• Jury Trial: a trial in which the verdict is decided by a jury rather than by a judge. It is a legal proceeding where both sides of an issue (or controversy) present evidence to a group of people who will decide the case. These people are called “jurors” or “the jury.” The jurors listen carefully to all the evidence presented by both sides and then decide if someone is guilty or not guilty of whatever crime they’re being charged with.                         

• Legitimacy: ability to be defended with logic or justification; validity 

• Legal Counsel: a lawyer with a law degree and a practising certificate who works in the legal department of an organisation. They provide legal guidance, advice, and represent clients in civil and criminal cases. Legal counsel is a professional or an organization that provides guidance on legal issues. The term legal counsel is used interchangeably with attorney or lawyer. 

• Misdemeanor: a criminal offense less serious than a felony; usually punishable by a fine or short jail time. 

• Over Policing: refers to the excessive and aggressive enforcement of laws in certain communities, often targeting marginalized groups.                    

• Permissible: permitted; allowed

• Procedural: relating to an established or official way of doing something

• Prosecutor: a legal representative of the prosecution who investigates, charges, and prosecutes people accused of breaking the law. In the federal system, prosecutors are called U.S. Attorneys and Assistant U.S. Attorneys. They represent the government in criminal cases.

• Prosecutorial Concession: when a prosecutor agrees to reduce charges or punishment in exchange for a guilty plea.

• Prosecutorial Discretion: refers to the authority of prosecutors to decide whether to bring criminal charges and what charges to file in a case.

• Public Defender: a lawyer employed at public expense in a criminal trial to represent a defendant who is unable to afford legal assistance.

• Racial Disparities: refer to the unequal treatment or outcomes experienced by different racial or ethnic groups in various aspects of society, often influenced by systemic inequality and discrimination. This condition occurs when one racial group systematically experiences worse outcomes compared to another.

• Relief: refers to the help or support that someone asks for from a court. When a person or a group feels wronged or believes their rights are being violated, they can go to court to seek relief. 

• Self-Incrimination: refers to the act of providing evidence or testimony that might expose an individual to punishment for a crime.

• Sentencing Differential: refers to the practice of imposing different sentences for the same crime based on various factors.

• Sixth Amendment of the Constitution: The Sixth Amendment (Amendment VI) to the United States Constitution sets forth rights related to criminal prosecutions. It was ratified in 1791 as part of the United States Bill of Rights.

• Speedy Trial: A defendant in a criminal case has a right to a speedy trial under the Sixth Amendment to the U.S. Constitution. The federal Speedy Trial Act provides some instruction for federal cases. For example, it requires formal charges to be brought within 30 days of an arrest.

• State Action: an action that is either taken directly by the state or bears a sufficient connection to the state to be attributed to it. State actions are subject to judicial scrutiny for violations of the rights to due process and equal protection guaranteed under the Fourteenth Amendment to the U.S. Constitution.

• Testimony: a solemn declaration usually made orally by a witness under oath in response to interrogation by a lawyer or authorized public official firsthand authentication of a fact: evidence.

• Transparency: the quality of being open to public scrutiny

• Trial Penalty: refers to the discrepancy between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. The trial penalty means that a defendant who chooses to proceed to trial instead of accepting a plea deal may receive a significantly lengthier sentence than they would have received had they not gone to trial.

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Sources

1. American Bar Association. (2023, February 22). 2023 plea bargain task force report urges fairer, more transparent justice system. News. https://www.americanbar.org/news/abanews/aba-news-archives/2023/02/plea-bargain-task-force/

2. American Bar Association. (n.d.). ABA CJS Plea Bargaining task force. Criminal Justice Section Initiatives. https://www.americanbar.org/groups/criminal_justice/committees/taskforces/plea_bargain_tf/

3. American Bar Association. (n.d.). https://www.americanbar.org/

4. Buckwalter-Poza, R. (2025, March 17). Making justice equal. Center for American Progress. https://www.americanprogress.org/article/making-justice-equal/

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