ABA Criminal Justice Section Announces Launch of Plea Bargaining Task Force
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.