Plea Bargaining’s Victim Problem

Abstract

Plea bargaining has long had a victim problem. Victims report feeling excluded from the criminal system through the often shadowy plea process. Over the last many decades, every state and the federal system have responded to these concerns by promulgating statutes requiring prosecutors and courts to consult with and provide information to victims. Despite this proliferation of statutes, there remains a gap between legislative intent and the lived experience of crime victims. The exclusion of victims through plea bargaining is merely another chapter in the story of victim alienation from the criminal system. There are many reasons to be concerned about the “vanishing trial,” but at least one of them should be that victims rarely have an opportunity to be heard in a system with no trials. After reviewing the current landscape of laws meant to protect victims during the plea process, this essay discusses some of the barriers that prevent these laws from being effective. Finally, it briefly outlines emerging proposals from advocates and legal scholars aimed at restoring victim agency in the plea context.