ABA Adopts the 14 Principles on Plea Bargaining

As Chair of the American Bar Association Criminal Justice Section from 2018-2019, I had the pleasure of creating three task forces. One of those task forces, which I went on to co-chair, was the Task Force on Plea Bargaining. The Task Force was comprised of representatives from the prosecution, defense, academy, advocacy organizations, and the state and federal systems. After over three years of work, we released our report and recommendations earlier this year (a blog post about the report is available here). Included in our report were 14 Principles that we developed to create a fairer, more transparent, and more just criminal system. 

Last week in Denver, Colorado at the ABA Annual Meeting, I moved adoption of those 14 Principles in ABA Resolution 502. The Resolution received no opposition and was overwhelmingly adopted by the ABA House of Delegates. With the passage of Resolution 502, the 14 Principles now become the official policy of the ABA. It has been a long road and there is much left to do, but this is an important step forward.

Video of the Resolution discussion is below, along with coverage of the adoption of the 14 Principles and the 14 Principles themselves. 

ABA Journal Article about Resolution 502 (here)

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.