Following bail, the next step depends on the prosecutor, the defendant, and, at times, the judge. Although a date is set for a trial during the arraignment or preliminary hearing, very few cases nationwide ever go to trial. Prosecutors often have to dismiss the charges because the evidence might have been strong enough to support an arrest, but not strong enough to prove guilt beyond a reasonable doubt. Of the remaining cases, most are resolved through plea bargaining instead of a trial (Hemmens et al., 2017). In these cases, the prosecutor promises a reduced sentence in return for the defendant pleading guilty to a lesser crime. In doing so, the prosecutor in effect acts as a de facto judge and makes most of the decisions regarding the disposition of a case (Scheck et al., 2003).
Plea bargaining is not limited to criminal cases. A version of it can be found even in traffic courts (Cunningham, 2009). For example, an investigation in the metropolitan St. Louis area discovered that accused speeders retain attorneys (who specialize in traffic cases) to get the charges “adjusted” to nonmoving offenses such as having a loud muffler or a burned- out headlight—offenses that do not result in point penalties for driving records (Osborne, 1992). Prosecutors, who want to clear the traffic docket, prefer plea bargaining, lawyers make money by charging about $250 to negotiate a city ticket, and the accused speeders are not faced with the loss of their driving privileges. There is a silent understanding among the plea bargain participants that, if an offender paid the lawyer, “that’s punishment enough.” Poor people and those who insist on pleading not guilty on their own are the ones who are likely to have their licenses suspended.
Plea bargaining is quite controversial (Feeley, 1979; Lynch and Evans, 2004). Critics say that it lets some criminals obtain “cheap” convictions (that is, ones in which they do not pay for the real crimes they committed), that it leads some defendants to plead guilty when they in fact are not guilty, that it is moving criminal justice into an administrative process rather than an adversarial one, and that it is generating cynicism about criminal justice among the public. On the other hand, other observers say that plea bargaining is necessary to save time, money, and energy in the legal system. From the prosecutor’s standpoint, it at least ensures that a defendant receives some legal punishment, while from the defendant’s standpoint, it reduces the sentence they might otherwise have received (Hemmens et al., 2017).
Sentencing The final step in most criminal cases is sentencing defendants who have been convicted. In this regard, most jurisdictions permit the exercise of considerable discretion by the judge in many types of cases while giving them less discretion in other types of cases, for example, serious felonies with mandatory minimum sentences.
Thus, judges do have some choice between different sentencing options for most crimes, and they tend to exercise it. Generally, the judge’s decision is influenced by the recommendations by the prosecutor and by probation officers. Other factors that might influence a judge’s decision include the race, sex, age, and socioeconomic and criminal background of the defendant and the type of lawyer involved (for example, privately retained or court appointed). The decision to plea bargain is also a factor.
When the United States instituted its “get-tough approach” during the 1970s to deal with crime, many states adopted mandatory sentencing laws to fight high crime rates. These laws require a minimum amount of incarceration upon conviction and were designed for specific offenses such as rape, murder, drug trafficking, and dangerous weapons violations. Studies show that mandatory minimums have dramatically increased the number of offenders in prison, and the prison terms are longer. But other than keeping offenders off the streets for a longer time, mandatory sentencing provisions do not act as general deterrence and have had little, if any, measurable impact on crime rates (Walker, 2015). Other law and order initiatives such as “three-strikes” laws mandating life without parole for repeaters of certain violent or drug-related crimes, fared no better. They, too, have failed to combat crime and recidivism and ignore questions of rehabilitation and reform (Walker, 2015).