ABA Criminal Justice Section Announces Launch of Plea Bargaining Task Force

The American Bar Association Criminal Justice Section Fall Institute occurred on November 2, 2018, in Washington, DC. It was a wonderful event that featured a host of interesting and timely panel sessions. I was honored for the opportunity to open the conference with an address examining the history of plea bargaining. During my remarks, I also announced the launch of a new ABA Criminal Justice Section Task Force. The Plea Bargaining Task Force will bring together a diverse group of individuals representing various institutions and perspectives in the criminal justice system to examine plea bargaining and provide recommendations regarding the best path forward. 

My remarks were followed by an address by Judge Jed Rakoff of the United States District Court for the Southern District of New York. In his address, Judge Rakoff discussed the many issues presented by the dominance of plea bargaining in our current system. His remarks were then followed by a panel discussion of plea bargaining, which included Judge Rakoff, Professor Russell Covey (Georgia State University College of Law), Rebecca Shaeffer (Fair Trials), and District Attorney Sherry Boston (Dekalb County, Georgia). It was an engaging session that reminded us of the significant role of plea bargaining today and the need for continued work examining the impact of this institution on the criminal justice process. 

Below are some of my introductory remarks from the event.

We start this morning with remarks and a panel discussion on the incredibly important issue of plea bargaining.  As you no doubt know, almost 98% of federal convictions and 95% of state convictions come not from a trial, but from pleas of guilt.  In roughly 75% of those cases, a guilty plea comes in return for an offer of leniency or in response to a threat of punishment. 

Though we have grown incredibly comfortable with plea bargaining in today’s system, it is important to recognize that bargained justice is a relatively new invention and does not hold deep common law roots. 

In fact, appellate courts who first began to see what we would now call plea bargaining begin to rise shortly after the American Civil War struck down the practice as impermissibly coercive. 

Nevertheless, plea bargaining continued to grow into what is has become today, and much of that growth occurred in the shadows of the system – outside the eyes, regulation, and insights of any branch of government. 

In recent years, more and more attention has begun to focus on plea bargaining as we have worked to better understand the functioning of the system and the decision processes of those within it. 

And this new focus has led to a much deeper understanding of both the benefits and dangers of the system we have created. 

For example, in 1970, when the Supreme Court finally approved of plea bargaining in the Brady decision, the court indicated that it had little concern about an innocence problem.  The Court believed that innocent people simply don’t plead guilty, they go to trial.

A few years ago, I sought to test this idea and conducted a psychological deception study that falsely accused students of cheating and then offered them the ability to plead guilty in return for a more lenient punishment.  In response, 56% were willing to falsely confess to something they knew definitely they had not done. 

This study led to a torrent of new psychological research into plea bargaining that has now created a deep and growing body of literature offering new insights into the operation of the plea bargaining machine and those within it.

With all that we have learned in recent years, it seemed the time was right to bring together the stake-holders in the criminal justice system to examine plea bargaining in a way it never was during its shadowy rise, and to ask whether we could make the system better… fairer… more just… and less dominated simply by a desire for efficiency. 

To that end, I’m pleased to announce today the creation of the ABA Criminal Justice Section Plea Bargaining Task Force, which will examine plea bargaining and consider how we might best move forward. 

Given this new work by the Section, it also seemed fitting to start our Annual Fall Institute with leaders in the field to offer us their thoughts on this timely subject.

‪At the end of a wonderful weekend in Washington, DC leading the ABA Criminal Justice Section Fall Institute and Council meeting, I was honored to be invited to the Embassy of Japan to meet with leaders from the Supreme Prosecutor’s Office and various regional prosecutor offices to discuss Japan’s new prosecutorial agreement law and share my research on plea bargaining. Our discussion focused on the many lessons we have learned regarding plea bargaining in the United States. I was also able to share with the group our current law and psychology research into plea bargaining and innocence in Japan and South Korea. My message to the group was that plea bargaining's innocence issue is a global phenomenon. My sincerest thanks to the government of Japan and those present at the meeting for the opportunity to discuss this important issue. I hope there are more opportunities to discuss the best path forward for Japan as it begins to implement the prosecutorial agreement law.