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 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 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.
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