Rutgers Law Associate Professor Thea Johnson authored a new collaborative report that indicates that plea bargaining, as currently practiced, is often unjust, unfair and lacks transparency. This is particularly concerning given that plea bargaining has become the primary way to resolve criminal cases in the United States, with nearly 98% of convictions nationwide currently coming from guilty pleas.
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, the report 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. Police and government misconduct often goes unchecked because so few defendants proceed to pretrial hearings where such misconduct is litigated,” the report said.
Professor Johnson is the reporter for the Plea Bargain Task Force, a group convened by the Criminal Justice Section of the American Bar Association. Formed in 2019 to assess the state of plea bargaining in America, the task force is the first collaborative endeavor with members representing various and diverse perspectives within the criminal system to take a definitive and comprehensive look at plea bargaining nationwide. It is made up of prosecutors, defense attorneys, judges, academics and members of various think tanks and advocacy organizations, including task force members affiliated with Southern Poverty Law Center, Innocence Project, Council on Criminal Justice, National Association of Criminal Defense Lawyers, Fair Trials and the Cato Institute.
The task force recommended several major steps that legislatures, lawyers, judges and court administrators can take to create a more fair and transparent plea-bargaining system. “While the plea-bargaining process in the United States is broad and varied, the task force determined that it was vitally important to craft a single set of principles to guide plea practices generally,” the report found. “These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental constitutional right to trial.”
Among the 14 guiding principles in the report are the following:
Principle 1: A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice and legitimacy in the criminal justice system.
Principle 2: Guilty pleas should not result from the use of impermissibly coercive incentives that force a defendant to plead guilty rather than pursue their right to a trial.
Principle 3: A substantial difference between the sentence offered prior to trial and the sentence received after trial undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.
Principle 4: Charges should not be selected or amended to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.
Principle 5: The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.
Principle 8: The use of bail or pretrial detention to induce guilty pleas should be eliminated.
Principle 10: Although guilty pleas necessarily involve the waiver of certain trial rights, defendants should never be required to waive certain rights. Among them: 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 problems identified by the task force could be resolved through the adoption of ethical rules that apply to the behavior of judges and lawyers.
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