“They often tell you that you're innocent until proven guilty, but in Hays County, it felt like the opposite,” Myles Martin wrote for Vera. Martin spent 30 months in jail while awaiting trial in Texas, all because he couldn’t afford to pay $115,000 in bail.

During those years, Martin was surrounded by people who told him to accept a plea deal.

“It’s truly a helpless feeling when the attorney, who supposedly works for you, is saying that signing a plea deal is your best bet,” said Martin. “It’s all terrifying.”

One of the many injustices of the United States criminal legal system is how long people spend in jail waiting for their day in court. Every day, more than 400,000 people are detained pretrial, most simply because they cannot afford to pay the bail amount that’s been set for them. People can end up spending days, weeks, months—or, as in Martin’s case, years—in jail, waiting for their day in court.

However, in many cases, that day in court never arrives. The vast majority of cases, at both the federal and state level, are actually settled through plea agreements—“a low visibility, off-the-record, and informal process that usually occurs far from open court,” as noted in one Vera report.

In 2022, nearly 90 percent of people charged in federal criminal cases pleaded guilty and did not go to trial at all. Cases at the state level have followed a similar pattern. Relevant data at the state level is generally far less comprehensive, but from 2012 to 2015, California, Florida, Pennsylvania, and Texas had trial rates of less than two percent.

Excessive dependence on plea bargaining shows the hand of a criminal legal system that favors efficiency over fairness and expediency over real solutions that can make our communities safer. We need to take a critical look at the conditions and biases that encourage this practice and make changes that further justice and transparency.

The pressure to plead guilty

The country’s massive criminal legal infrastructure—the sheer volume of arrests, charges, and cases brought forward under our system of overcriminalization and mass incarceration—incentivizes public defenders and prosecutors to rely heavily on plea bargaining to get through their caseload. A criminal case is settled by plea bargain every two seconds during a typical workday in the United States, according to one estimate.

Innocent people are frequently coerced into pleading guilty, due to the prospect of facing more jail time or a mandatory minimum sentence. According to a report by the American Bar Association’s (ABA) Plea Bargain Task Force, the practice “creates perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly.”

The system exerts immense pressure on people to plead guilty, and people who are detained pretrial in jail are, in fact, more likely to plead guilty. Prosecutors may make “exploding offers”—time-bound deals that are hard to turn down. Or they may offer a defendant a plea with a recommendation of time served—which would allow them to get out of jail by pleading guilty—but subsequently impose money bail if the defendant rejects the offer. In this scenario, a person must choose between fighting the case—while being held pretrial if they cannot afford to pay bail—or pleading guilty to secure their release from jail. And people frequently opt for the latter for many legitimate reasons, such as to escape unsafe and unsanitary conditions in jail or because they need to get to work or school or care for children or other family members.

The reliance on plea bargaining also promotes and exacerbates racial inequalities that are prevalent in all aspects of our criminal legal system. Black defendants in drug cases, for example, receive plea offers for longer sentences than those offered to white defendants facing the same charges.

The pitfalls of mandatory minimums

Mandatory minimum sentencing laws also make it risky for a defendant to take a case to trial. If found guilty, they could end up serving a lengthy sentence. Prosecutors will, in some cases, exploit these fears by presenting a more “favorable” plea deal that’s difficult for even an innocent person to turn down.

Prosecutors can also decide to charge a defendant with an offense that carries a mandatory minimum sentence if the defendant refuses to accept a plea deal. In these ways, prosecutors wield tremendous power in plea bargaining and, as the ABA report notes, can “coerce a defendant to plead guilty rather than pursue their right to trial and risk a mandatory minimum sentence as a result.”

Vera, the ABA, and others have pushed to end mandatory minimums, in part because of the outsized power such provisions give prosecutors in plea bargaining—authority that goes “largely unchecked.”

Not a bargain at all

Martin did eventually get his day in court. After spending two-and-a-half years in jail—and rejecting multiple plea offers—he was acquitted. Although he did finally clear his name, the cost was high.

“The biggest loss was my relationship with my now eight-year-old son and five-year-old daughter,” said Martin. “You cannot rewind time and repair the damage that has been done.”

That great cost is the power prosecutors hold over people. It’s clear that some of the phrases we use to describe these arrangements—such as plea deals and plea bargains—are misleading; the “deals” are “negotiated” by parties with vastly unequal leverage and often backed up by the threat of a harsher deal or mandatory minimum charge. Pretrial detention frequently spurs people to plead guilty, if only to remove themselves from dangerous jail conditions. Mandatory minimums increase the stakes—when a guilty verdict can lead to a prison term with a minimum of five to 10 years, defendants might reasonably opt for the known outcome.

The criminal legal system relies on plea bargaining out of necessity. There are not enough judges, lawyers, or courtrooms to take every case to trial. But the misuse of plea bargains has created an opaque system in which little is known about how pleas are negotiated. Jurisdictions must establish mechanisms to monitor the plea process; prosecutors should dismiss weak cases rather than seek a plea; and both judges and lawyers must act fairly and transparently to ensure that people are not coerced into accepting a “bargain” that is anything but.