Report finds plea bargaining costs outweigh benefits
Nearly 98% of convictions in the United States come from guilty pleas, making plea bargaining the primary way to resolve criminal cases. But plea bargaining as currently practiced is often unjust, unfair, and lacks transparency, according to a report from the American Bar Association’s Plea Bargain Task Force, a group representing a broad swath of the criminal justice system and convened by the Criminal Justice Section.
Members of the Plea Bargain Task Force include prosecutors, defense attorneys, judges, academics, and members of various think tanks and advocacy organizations, making the task force the first collaboration among such diverse perspectives within the criminal system to examine plea bargaining nationwide. Some task force members are affiliated with the Southern Poverty Law Center, Innocence Project, Council on Criminal Justice, National Association of Criminal Defense Lawyers, Fair Trials and the Cato Institute.
The report notes that the current plea-bargaining system offers some benefits, including efficiency, cost savings, certainty, and a mechanism to incentivize defendants to cooperate or accept responsibility. However, it found those benefits come at a cost. “The integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas,” the report said. “Police and government misconduct often goes unchecked because so few defendants proceed to pretrial hearings where such misconduct is litigated.” More troubling, the report found that “plea bargaining promotes and exacerbates existing racial inequity in the criminal system.”
Among 14 guiding principles recommended in the report, the task force said a vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promoting transparency and asserted that guilty pleas should not result from impermissible coercion or incentives. It also said defendants should never be required to waive certain rights, including the right to effective counsel, the right to challenge sentencing errors, the right to challenge the constitutionality of the statute of conviction and the right to appeal.
Many of the task force recommendations may require changes to current laws, rules of procedure or regulation. However, the report concluded that state courts could interpret their constitutions as providing greater protections to defendants during plea bargaining than the federal constitution. The report also found that some problems identified by the task force could be resolved through the adoption of ethical rules that apply to judges and lawyers.
To view the report, visit www.americanbar.org/content/aba-cms-dotorg/en/groups/criminal_justice.
The views expressed in the report represent the opinions of the authors who each served in their individual capacities. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the association or any of its entities.
ABA Section of Legal Education releases comprehensive report on bar passage data
The managing director’s office of the American Bar Association Section of Legal Education and Admissions to the Bar recently released a comprehensive set of data on bar passage outcomes for American Bar Association-approved law schools. Spreadsheets are available on the section’s webpage, www.americanbar.org/groups/legal_education, under Legal Education Statistics, which report these outcomes under ABA Required Disclosures on a school-by-school basis and in more detail.
The new data shows that in the aggregate, 91.44% of 2020 law graduates who sat for a bar exam passed it within two years of graduation (91.87% with Diploma Privilege). The two-year “ultimate” aggregate success rate is slightly better than the 91.27% comparable figure for 2019 graduates. The 2020 ultimate bar pass data also reveals that 92.58% of all graduates sat for a bar exam within two years of graduation, and that schools were able to obtain bar passage information from 98.56% of 2020 graduates.
First-time takers in 2022 achieved an aggregate 73.87% pass rate (78.33% with diploma privilege), which is approximately a 2-percentage point decrease over the comparable 80.28% pass rate (with diploma privilege) for 2021. Consistent with last year, those admitted to the practice of law solely based on their graduation status are considered bar passers.
Bill Adams, managing director of ABA accreditation and legal education, noted that as with past years, this information was reported to the ABA by law schools and is being made public as a matter of consumer information under the authority of ABA Standard 509. He also pointed out that the latest data “is not a compliance report for ABA Standard 316,” which establishes bar exam outcomes that a law school must achieve under the accreditation standards.
“That is a separate and distinct matter,” he added. “But we have found these public reports provide important consumer information for students considering whether and where to attend law school and for others with an interest in legal education.”
Law schools devote a considerable investment of time and resources to collect this data. Adams said the bar passage scores represent one of the best measures to determine if a particular law school is offering a rigorous program of legal education to students whom the school has determined through its admissions process are likely capable of completing the J.D. program and being admitted to the bar.
Additional bar passage information that will include gender and race statistics on a national basis is expected to be released in the first half of March.
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