ABA CJS Plea Bargaining Task Force Releases Report

Earlier today, the American Bar Association Criminal Justice Section Plea Bargaining Task Force released its final report, which includes 14 recommendations for creating a more transparent, fairer and more just system. Formed in 2019 when I served as Chair of the Criminal Justice Section, the task force was created to assess the state of plea bargaining in America and was made up of prosecutors, defense attorneys, judges, academics and members of various think tanks and advocacy organizations - including task force members affiliated with The Innocence Project, Southern Poverty Law Center, Council on Criminal Justice, Fair Trials, NACDL, and the Cato Institute. 

More information about the task force and a copy of the report are available on the task force website.

The 14 Principles from the Report:

• 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 6: A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
• Principle 7: There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.
• Principle 8: The use of bail or pretrial detention to induce guilty pleas should be eliminated.
• Principle 9: Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
• 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. 
• Principle 11: An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
• Principle 12: Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.
• Principles 13: Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
• Principle 14: At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.

The report, which contains a detailed discussion of each of the above principles, notes that the current plea-bargaining system offers many 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 high cost in our current system. For example, coercive plea bargaining that values efficiency over accuracy leads the innocent to falsely plead guilty and victims' interests to go unvindicated. Plea bargaining can also allow police and government misconduct to go undetected. The report also found that plea bargaining can exacerbate existing racial inequality in the criminal system. Finally, it is important to note that each of us has the constitutional right to trial, and we found that defendants who exercise that right are often punished simply for doing so. 

This is why this diverse group representing various sides of the criminal system came together to recommend 14 principles to create a fairer, more just and more transparent system. I am very grateful to the ABA Criminal Justice Section for supporting this work. My deepest thanks also to the task force members, my Co-Chair, Professor Russ Covey of Georgia State University College of Law, and the Task Force Reporter, Professor Thea Johnson of Rutgers Law School. 

Media Related to the Task Force Report:

Opinion piece written by Lucian Dervan, Thea Johnson, and Russ Covey - available here. 

NPR News Story - available here. 

Law360 News Story - available here. 

ABA Journal Story - available here.