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Jack Verner, Associate Member, University of Cincinnati Law Review
The annual rate of convictions by guilty plea recently surpassed a record high. In 2018, an estimated 97% of federal offense charges were convicted by guilty plea. State rates are not far behind, with an estimated 94% of state felony convictions resulting from plea bargains. The right to a trial by jury is enshrined in the Sixth Amendment to the U.S. Constitution, and yet criminal adjudication by trial is now the narrow exception, not the rule. As the guilty plea has so fundamentally transformed the criminal justice process, philosophical scrutiny of the plea bargain has become necessary.
Section II of this note outlines the nature of plea bargaining and its historical justification in contract law doctrine. Section III asserts that the established plea bargain process affords insufficient protections to criminal defendants to be justified under contract law doctrines. Section IV invites consideration of other possible justifications.
A plea bargain is “an agreement set up between the plaintiff and the defendant to come to a resolution about a case, without ever taking it to trial.” The term “agreement” in this definition can be read quite literally. Plea agreements are, in a literal sense, an agreement in which the defendant waives certain rights and privileges in exchange for avoiding the risk of proceeding to trial. The prototypical plea bargain features the prosecution and defense presenting the court with a stipulation of a certain set of facts, amounting to an admission of guilt, often with a sentencing recommendation with a less severe sentence than the possible maximum sentence should the case proceed to trial. Notably, defendants who are held in pre-trial detention are significantly more likely to accept a plea deal; and in turn, defendants who are held in pre-trial detention are disproportionately low income people who are less capable of affording cash bail.
Courts enjoy broad discretion in deciding whether to accept a plea agreement. Courts have historically applied the specific rules of criminal procedure and constitutional law in exercising this discretion. For example, the U.S. Supreme Court has famously held that the Constitution requires plea bargains to be made knowingly, intelligently, and voluntarily. However, because plea agreements constitute enforceable agreements, courts will also employ certain doctrines from the law of contracts in deciding whether to accept these agreements. For example, the Supreme Court has barred the use of physical harm (or threats thereof) and “mental coercion overbearing the will of the defendant” from use in reaching plea agreements. This language parallels the law of contracts. A contract is void if agreed to under actual physical harm and voidable if agreed to under threat of physical harm. Similarly, a contract is voidable under the doctrine of undue influence where one party’s will dominates (or overbears on) the will of the other party.
Another contracts doctrine courts will apply to plea bargains is the doctrine of unconscionability. Unconscionability is a “[d]egree of unreasonableness and unfairness of a contract or deal prompting a court to modify or nullify it.” There are a host of reasons why courts might find a contract unconscionable, and no official list of reasons or elements is required for litigants to show unconscionability. Typically, to rule a contract unenforceable for unconscionability, the court must find at least some degree of both procedural unconscionability (the bargaining process was unfair) and substantive unconscionability (some term in the contract itself is unfair). The quintessential indicator of procedural unconscionability is an absence of meaningful choice on the part of the disadvantaged party. The other factors courts consider are more varied and less clear. Leading contracts scholar Corbin writes that the “usual procedural unconscionability factors are listed: age, education, intelligence, business acumen, relative bargaining power, who drafted the contract, the conspicuousness of the terms, were the terms explained to the weaker party, were the terms negotiable and were there alternative sources of supply.” Some courts will look to some combination of the whether the effect of the agreement is “profoundly discriminatory” to one of the parties; whether the agreement “contains language that attempts to sanction abusiveness, arbitrariness or the imposition of a needlessly burdensome condition;” or whether the agreement contains “language the real meaning of which is intentionally obscured from one of the parties.” While courts will not intervene to save a party from “a bad deal” or a contract made with poor judgment, the doctrine of unconscionability exists alongside doctrines such as duress and undue influence to protect parties from exploitation, oppression, and unfair surprises.
The application by courts of the doctrine of unconscionability to plea bargains is a relatively novel development. In the recent case of U.S. v. Osorto, Defendant Osorto pleaded guilty to conspiring to distribute controlled substances. The plea agreement submitted to the court for approval contained waivers shared by all plea agreements, including Orsoto’s waivers of “the right to a trial by a jury of his peers, to testify on his own behalf, to confront his accusers, to pursue additional discovery from the Government.” However, this plea agreement also functionally required Osorto to waive his right to file for compassionate release under 18 U.S.C. § 3582(c)(1)(A) (“the First Step Act”). The court rejected this plea agreement, finding that the agreement undermines Congressional intent in passing the First Step Act, and further, that bypassing compassionate release is an “appallingly cruel” term and renders the agreement an “unconscionable application of a federal prosecutor’s enormous power to set the terms of a plea agreement.”  The Court weighed the disparate bargaining power of Osorto and the government alongside the immediate consequences Osorto would face if he opposed the government’s power and deemed his plea agreement acquiescence to be a “Faustian choice…not really a choice at all.”
Some scholars argue that plea bargains are per se unconscionable. Noted scholars Albert Alschuler and Stephen Schulhofer have written at length in support of their positions that properly applied contract doctrines preclude any bargaining process which could result in a criminal conviction. At the very least, critics argue, plea agreements are “by definition, the result of coercion, made under duress by defendants facing the infamous trial tax: a risk of substantially higher penalty if convicted at trial.” Proponents argue that plea bargains are not per se unconscionable because the “conditions exist for an exchange that benefits both parties and harms neither.” Alternatively, some argue that plea bargains are not the problem—the problem arises when courts fail to properly apply contract law doctrines to the criminal procedure.
The doctrine of unconscionability eviscerates the philosophical justification of plea bargains as contracts. Plea bargains flatly fail the tests of procedural unconscionability. The unequal bargaining power between a criminal defendant and a state which has the power to severely restrict the defendant’s liberty or penalize the defendant with the “trial tax” cannot be reconciled with the fundamental principle that contracts should be consensual. In countless instances defendants do not actually have meaningful choice. Prosecutors wield complete “dominance” over the plea-bargaining process such that the adversarial negotiation cannot possibly be deemed consensual; yet this discrepancy in bargaining power enjoys the approval of the Supreme Court. After all, prosecutors do not even have to offer a plea bargain at all; defendants are subject entirely to the whims of prosecutors.
Furthermore, while “take-it-or-leave-it” adhesion contracts often prompt courts to consider questions of unconscionability, prosecutors consistently include “waiver provisions as contracts of adhesion.” Perhaps the only commonly accepted factor which is widely used to render an agreement unenforceable in both the criminal and contracts contexts is “terms or clauses that cannot be understood.” The accepted use of this single factor hardly provides confidence that the plea bargaining process is free from exploitation, oppression, and unfair surprises. Defendants are clearly not in a position of equal bargaining power with the entire government. Some argue that not only should defendants be in an equal position; defendants should be afforded special protections in the negotiating process, because constitutional rights afforded to defendants against the state should theoretically mean defendants ought to have superior bargaining power. In either case, defendants are not suitably situated with comparable bargaining power or meaningful choice; and thus, the plea bargaining process is procedurally unconscionable.
Indeed, some scholars even assert that the “fearsome array of tools [prosecutors] can use to extract confessions and discourage people from exercising their right to a jury trial” amount to outright coercion. Proponents of plea bargains counter with the point that as long as the party with superior bargaining power did not create the coercive circumstances, then the voluntary choice of the weaker party has not been infringed upon; and since individual prosecutors are not creating these circumstances, they by definition cannot be coercive. This defense is misguided; the fact that the prosecutors do not personally arrest the defendants and create the coercive circumstances which overwhelmingly induce plea bargains does not somehow confer more bargaining power to defendants. The prosecution represents the same state which created the circumstances leading to plea bargain decisions. Defendants in our system are being coerced into plea bargaining by the same state which created pre-trial detention and the caseload backlog in the criminal justice system. It is the state who prosecutes, the state who fails to sufficiently fund and staff criminal justice system offices, and the state which wields all discretion and power in the plea negotiation process.
Plea bargaining also fails the commonly used tests for substantive unconscionability. The prototypical plea agreement requires the presumptively innocent defendant to waive multiple constitutional rights and numerous statutory rights in exchange for an exit from the criminal procedure; certainly, these terms constitute language that is unreasonably one-sided or “attempts to sanction abusiveness, arbitrariness or the imposition of a needlessly burdensome condition.” But perhaps more troublingly, there is no upper limit on what imposed waivers could amount to unconscionability. After all, if a waiver of First Step Act right to compassionate release is unconscionable because it frustrates public policy and congressional intent; how can we justify expecting defendants to waive constitutional rights, such as to a trial by jury? There are no terms in any agreement which result in a criminal conviction which could possibly be comparably valuable and fair to both the state and the defendant; therefore plea bargaining fails to conform to the doctrine of substantive unconscionability.
The philosophical justification of plea agreements as conventional contracts rests on dubious legal ground and fails to adequately ensure the rights of defendants are honored. Perhaps utilitarian philosophies of judicial efficiency or the acceptance of affected parties can justify the practice, but traditional contract law doctrine does not.
 Ripley Rand, David M. Palko, Year One of Trump’s DOJ: The National Criminal Sentencing Statistics, 12 The National L. R. 74 (2019) (97.4% of sentenced federal offenders pled guilty to one or more of their charged offenses, marking “the highest percentage of guilty pleas in federal cases since the [United States Sentencing] Commission began reporting data”).
 Emily Yoffe, Innocence Is Irrelevant, The Atlantic (Sept. 2017), https://www.theatlantic.com/magazine/archive/2017/09/innocence-is-irrelevant/534171/.
 U.S. Const. Amend. VI.
 Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012) (Justice Kennedy acknowledges “[c]riminal justice today is for the most part a system of pleas, not a system of trials”).
 Plea Bargaining, Black’s Law Dictionary Free Online Legal Dictionary (2nd ed. 2022).
 Robert E. Scott, William J. Stuntz, Plea Bargaining as Contract., 101 Yale L.J. 1909, 1911-12 (1992).
 Id. at 1921.
 Amy E. Lerman, Ariel Lewis Green, & Patricio Dominguez, Pleading for Justice: Bullpen Therapy, Pre-Trial Detention, and Plea Bargains in American Courts, 68 Sage J. 159 (2021); Nick Petersen, Do Detainees Plead Guilty Faster? A Survival Analysis of Pretrial Detention and the Timing of Guilty Pleas, 31 Sage J. 1015 (2019) (“many detainees plead guilty quickly to escape the pains of detention, including poor confinement conditions, strained work or family relations, and “dead time.” Moreover, these pressures to plead are often exacerbated by uncertain detention length, time-sensitive “exploding” plea deals, and temporal discounting”).
 Pretrial Detention, Prison Policy Initiative, (Mar. 2022), https://www.prisonpolicy.org/research/pretrial_detention/.
 Santobello v. New York, 404 U.S. 257, 262 (1971).
 Brady v. United States, 397 U.S. 742 (1970); see also Ram Subramanian, Léon Digard, Melvin Washington II, and Stephanie Sorage, In the Shadows: A Review of the Research on Plea Bargaining 8 (Vera Institute of Justice, 2020).
 Jennifer Rae Taylor, Restoring the Bargain: Examining Post-Plea Sentence Enhancement as an Unconscionable Violation of Contract Law, 48 Cal. W. L. Rev. 129, 131 (2011) (“Federal Judge and former U.S. Attorney Gerard Lynch defends plea bargains…[as] most analogous to an out-of-court settlement entered into by private actors, and accepted by the court as an alternative disposition that eliminates the need for public trial and judicial intervention”).
 Brady, 397 U.S. 742, 50.
 Restatement (Second) of Contracts § 174 (Am. L. Inst. 1981).
 Nancy S. Kim, Relative Consent and Contract Law, 18 Nev. L.J. 165, 214 (2017) (“Generally, a contract whose object or purpose is illegal is void. Where the illegality is only collateral to the contract whose purpose is not illegal or against public policy, the contract may be voidable but not void”).
 Restatement (Second) of Contracts § 175-76 (Am. L. Inst. 1981).
 Restatement (Second) of Contracts § 177 (Am. L. Inst. 1981).
 Unconscionability, Black’s Law Dictionary Free Online Legal Dictionary (2nd ed. 2022).
 Paul Bennett Marrow, Contractual Unconscionability: Identifying and Understanding Its Potential Elements, Columbia.edu (2000) at 18, http://www.columbia.edu/~yc2271/files/teaching/unconsc.pdf.
 Higgins v. Superior Court, 140 Cal. App. 4th 1238, 1249 (2006).
 Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965) (finding absence of meaningful choice in one party completely satisfies the procedural unconscionability prong, and all that remains for a finding of unconscionability is “contract terms which are unreasonably favorable to the other party”).
 7 Corbin on Contracts § 29.4 (2021) n.11.
 Paul Bennett Marrow, Contractual Unconscionability: Identifying and Understanding Its Potential Elements, Columbia.edu (2000) at 22, http://www.columbia.edu/~yc2271/files/teaching/unconsc.pdf.
 Ellen A. Wiencek, Waivers of Compassionate Release in Plea Bargains: The Need for Administrative Action to Prevent Unfair Sentencing, U. Chicago L. Rev. Online (2021), https://lawreviewblog.uchicago.edu/2021/08/05/wiencek-compassionate-release/.
 U.S. v. Osorto, 445 F. Supp. 3d 103 (N.D. Cal. 2020).
 Id. at 104.
 Id. (“I agree not to move the Court to modify my sentence under 3582(c)(1)(A) until I have fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring such a motion on my behalf, unless the BOP has not finally resolved my appeal within 180 days of my request despite my seeking review within ten days of each decision”).
 Id. at 109.
 Id. at 105 (emphasis added).
 Osorto, 445 F. Supp.3d at 110.
 See generally Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CAL. L. REV. 652 (1981); see also Stephen J. Schulhofer, Due Process of Sentencing, 128 U. PA. L. REV. 733 (1980).
 Taylor, supra note 13, at 183; citing Albert Alschuler, The Changing Plea Bargaining Debate, 69 Calif. L. Rev. 652, 695-703 (1981) (Taylor summarizes Alschuler as arguing “contract theory supports the complete abolition of plea-bargaining due to its inherently coercive nature”).
 Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1911-12 (1992).
 See Michael D. Cicchini, Broken Government Promises: A Contract-Based Approach to Enforcing Plea Bargains, 38 N.M. L. REV. 159, 161-62 (2008).
 Robert Schehr, The Emperor’s New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. 385, 429-30 (2015).
 Donald G. Gifford, Meaningful Reform of Plea Bargaining: The Control of Prosecutorial Discretion, 1983 U. Ill. L. Rev. 37, 42-51 (1983) (“’Plea bargaining’ is in reality the prosecutor’s unilateral administrative determination of the level of the defendant’s criminal culpability and the appropriate punishment for him”).
 Bordenkircher v. Hayes, 434 U.S. 357 (U.S. 1978).
 Lafler v. Cooper, 566 U.S. 156, 168 (U.S. 2012).
 Higgins v. Superior Court, 140 Cal. App. 4th 1238, 1248 (2006).
 United States v. Mezzanatto, 115 S. Ct. 196, 216 (1995) (Souter, J., dissenting).
 While not following the analogy of traditional contracts doctrine, the Supreme Court has held that defendants must make the waivers included in plea bargains in a state of mind that is “knowing, intelligent, and voluntary.” See generally Henderson v. Morgan, 426 U.S. 637 (1976).
 Taylor, supra note 13, at 131 (“When courts fail to recognize the fundamental differences between plea bargains and standard contracts, and thus apply contract law without creating additional safeguards, the results are often unjust, illogical, and detrimental to both defendants’ interests and overall system legitimacy”).
 Clark Neily, Prisons Are Packed because Prosecutors Are Coercing Plea Deals. And, Yes, It’s Totally Legal., Cato Institute, (Aug. 8, 2019) https://www.cato.org/commentary/prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-its-totally-legal.
 Taylor, supra note 13, at 139; citing Robert E. Scott, William J. Stuntz, Plea Bargaining as Contract., 101 Yale L.J. 1909, 1911-12 (1992).
 Neily, supra note 45.
 Osorto, 445 F. Supp. 3d 103.
 Ellen A. Wiencek, Waivers of Compassionate Release in Plea Bargains: The Need for Administrative Action to Prevent Unfair Sentencing, U. of Chicago L. R. Online, https://lawreviewblog.uchicago.edu/2021/08/05/wiencek-compassionate-release/.