The Plea Bargaining Blog

In an 8-1 decision last week, the Supreme Court in the case of Hunter v. United States , 608 U.S. _ (2026) ruled that "an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice — meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute." As noted in an earlier post , the Plea Bargaining Institute filed an amicus in the case arguing for the imposition of limitations and guardrails on plea bargaining practices. The PBI wrote, "the imposition of limitations and guardrails for plea bargaining practices is vital to the establishment of an accurate, just, and constitutional plea bargaining system." The Court did exactly this in creating a new limitation on appellate waivers.  While Justice Kagan’s opinion for the Court focused on the narrow issue presented, it is worth note that Justice Gorsuch, joined by Justice Sotomayor and Justice Jackson, took the opportunity...

  The Plea Bargaining Institute has filed its first amicus brief with the United States Supreme Court in the case of Hunter v. United States. The case involves a defendant who gave a blanket waiver of the right to appeal as part of a plea bargain but later sought to challenge his sentence as unconstitutional. The case raises important questions regarding what limits or guardrails should be imposed on plea bargaining. The brief included discussion of studies regarding the reliability of pleas of guilty, the forces leading defendants to plead guilty, the phenomenon of false pleas of guilty by the innocent, and defendants’ knowledge and understanding of plea bargaining and their plea agreements. From the PBI amicus brief summary of argument section: That the Hunter case concluded with a plea of guilty is not surprising.   As acknowledged by this Court in Lafler v. Cooper , 566 U.S. 156, 170 (2012), “ [C]riminal justice today is for the most part a system of pleas, not a system...

In March 2025, Judge Jed Rakoff of the Southern District of New York issued an opinion challenging the constitutionality of what has been described as the "trial penalty." From the opinion: Why do so few cases go to trial? One reason is the so-called “trial penalty.” Since a prosecutor typically charges -- and is currently required to charge at the outset -- the most serious crimes she can prove, a plea bargain to a lesser charge reduces the risk of the often much higher penalty a defendant would face if convicted at trial. And given the prevalence of legislatively-prescribed mandatory minimum prison terms, there is little a judge can do about this in many cases. Moreover, even in those cases where the charges do not carry mandatory minimum prison terms, the Sentencing Guidelines (“Guidelines”) effectively reinforce the trial penalty by reducing the offense level calculation by two points if the defendant “clearly demonstrates acceptance of responsibility” by pleading guilty,...

Much attention has been focused in recent years on sentencing differentials in the plea bargaining context. The term sentencing differential captures the difference in sentence received by defendants who proceed to trial versus the sentence of codefendants or similarly situated defendants who plead guilty. For example, a Vera Institute Report from 2020 entitled  In the Shadows  noted that the odds of incarceration were 2.7 times greater for those who went to trial and the sentences in their review were 57 percent longer.  See  Ram Subramanain et al, Vera Inst. of Just.,  In the Shadows: A Review of the Research on Plea Bargaining  (Sept. 2020). Many have argued that this represents a punishment for exercising one's Constitutional right to trial by jury, leading some to call this phenomenon the "Trial Penalty."  Academics have been focusing a light on this phenomenon for some time and there are now several cases indicating that the judiciary is listenin...

The Ohio Supreme had an interesting case in August examining the troubling issue of "Dark Pleas." The case involved Lamont Clark, who was convicted of murder in 1993. In 2015, he filed a motion for a new trial after it was discovered that prosecutors had removed part of a medical record containing exculpatory evidence from the alleged victim in the homicide. Before the courts could hear the motion, however, Clark was offered a plea deal that would result in his immediate release. Clark accepted the deal, in part, because his mother was gravely ill at the time. Seven years later, Clark sought to withdraw his plea on the basis that it was coerced and, therefore, not voluntary as required by law. While the Ohio Supreme Court did not accept jurisdiction in the matter, Justice Donnelly wrote a powerful dissent describing what he called "Dark Pleas" and the manner in which they subvert due-process rights.  From Judge Donnelly's dissenting opinion.  This appeal present...

The Sentencing Matters Substack has an interesting piece by Jonathan Wroblewski discussing and examining a particular plea bargain. The piece, entitled Fair Enough? Truth, Justice, and the Case of Chrystul Kizer , can be found here .  The focus of the article, Chrystul Kizer, was alleged to have shot and killed Randall Volar when she was seventeen years old. According to the piece, Kizer told authorities that Volar had been "sexually abusing and otherwise mistreating her, including by marketing her as a prostitute. She said she shot him as he tried to touch her." After a 2022 Wisconsin Supreme Court decision decided that Kizer could raise an affirmative defense of abuse at trial, the case was resolved through a plea bargain. The bargain resulted in Kizer pleading guilty to one felony count of second-degree reckless homicide. The article explores whether this was a "fair" result, given that the eventual plea did not reflect the facts in the case.  From the author: I...

The Plea Bargaining Institute has posted a report regarding Supreme Court plea bargaining cases from 1970-2019. The report contains summaries of each case, which total 59. Before the summaries, the report contains a lengthy examination of the history of plea bargaining, the 1970 Brady decision, and the Supreme Court period following Brady . From the report's introduction: This report from the Plea Bargaining Institute contains summaries of plea bargaining cases from the U.S. Supreme Court from 1970 until 2019. Each summary contains the case title, date of decision, the court from which review occurred, whether the decision was unanimous, the authoring Justice, the members of the majority, concurrence, and dissent, a brief overview of the case, a more detailed case summary, and a key quotation from the opinion. Before the individual summaries are listed below, the report begins with a brief examination of the historical rise of plea bargaining. This introduction also contains brief...

In a new article authored by Prof. Lucian Dervan, Dr. Vanessa Edkins, and Prof. Thea Johnson, the authors explore the forces that lead to false pleas of guilty through examination of two cases of serial offenders who remained undetected for significant periods of time in part because others were initially coerced into false pleas of guilty in the cases.  Access a free copy of the article here . From the introduction: The last decade has seen significant growth in academic research and literature related to the plea bargaining system. In particular, much research has explored the impact of plea bargaining on the accused, including the phenomena of false guilty pleas by the innocent and false testimony in return for bargains. Both false guilty pleas and false testimony often result from the coercive bargaining practices regularly found in the criminal system. Plea bargaining is coercive when it overbears the will of the defendant, to borrow a phrase from the Supreme Court’s decision ...

The recently created Plea Bargaining Institute announced the launching of its new website today. The news release from the institute is found below and you can access the new website here - www.pleabargaininginstitute.com .  The Plea Bargaining Institute is pleased to announce the launching of the institute's new website - www.pleabargaininginstitute.com. The website contains valuable information that will assist the institute in its mission to create a global intellectual home for academics, policymakers, advocacy organizations, and practitioners working in the plea bargaining space to share knowledge and collaborate. Lucian Dervan, Founding Director of the PBI said, "We are incredibly excited to launch the website today and begin the process of making research and caselaw regarding plea bargaining more accessible to those working in the field and to the public generally. One of the main missions of the PBI is to advance plea bargaining research and reform through the dissemi...

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 ro...

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 leg...

Earlier this week, we announced the creation of the Plea Bargaining Institute . Today, we share a recent article from one of the members of the Plea Bargaining Institute's Advisory Board - Rodney Roberts . Mr. Roberts is an exoneree and re-entry coach with the Innocence Project.  The article discusses Mr. Roberts' decision to falsely plead guilty to an offense he had not committed after being given only 25 minutes to make the life altering decision.  From the piece: When I was 24 years old, I was incarcerated in New Jersey’s Essex County jail for a crime I did not commit. For almost a year I was behind bars — charged but not convicted. With no money to afford a private attorney, I relied on the counsel of public defenders. Then I was faced with a decision — the most consequential decision of my life — and one that I should never have had to make. My attorney told me I could plead guilty to the crime I had been falsely accused of, kidnapping and sexual assault, in exchange for ...

Criminal justice watchdog Fair Trials has partnered with Belmont University College of Law Professor Lucian E. Dervan to launch the Plea Bargaining Institute (PBI). Launched today, PBI is a groundbreaking project that will provide a global intellectual home for academics, policymakers, advocacy organizations and practitioners working in the plea bargaining space. PBI will create an environment for the sharing of knowledge and research and for collaboration related to the reform of global plea bargaining practices.  In the US, 95% or more of criminal cases are resolved through a plea of guilty. When someone pleads guilty they waive their right to a trial, something guaranteed by the U.S. Constitution. While a plea bargain may offer advantages, such as a more lenient sentence, plea bargaining often involves coercive incentives that negatively impacts all defendants’ right to trial. Research indicates that these incentives can be so coercive that even innocent defendants plead guil...

In an opinion issued in late November 2022, Senior Judge Frederic Block of the U.S. District Court for the Eastern District of New York discussed the impact of disparities between sentences of co-defendants based on their decisions to exercise their constitutional right to trial when finding extraordinary and compelling grounds for a sentence reduction. The case involved two defendants seeking reduced sentences on compassionate grounds under the First Step Act. In granting the first defendant's motion, the court wrote: Courts have found that a gross disparity between sentences of co-defendants stemming from their choice to exercise or forgo their constitutional right to a trial is an extraordinary and compelling factor. See United States v. Ballard, 552 F. Supp. 3d 461, 468 (S.D.N.Y. 2021) (finding that a drastic sentencing disparity between co-defendants, which resulted in part from the fact that Ballard opted to exercise his right to trial when his co-defendant accepted a plea de...

Earlier this year, several members of Congress introduced a bill aimed at adding additional statutory protections for the Constitutional Right to Trial. Entitled the " Right to Trial Act ," the legislation would require Judges during sentencing to consider whether an increased sentence was threatened or imposed based on a decision by the defendant to proceed to trial. The legislation would also require judges during sentencing to consider the plea offers and sentences received by co-defendants or similarly situated defendants who plead guilty instead of preceding to trial. Finally, the bill proposes that judges have the discretion to impose a sentence below an established statutory minimum if necessary to protect the constitutional right to trial.  Requiring judges to consider the impact of sentencing differentials when arriving at an appropriate sentence after conviction at trial and creating a safety-valve to help protect against the use of mandatory minimum statutes to coe...

Fair Trials , an organization that campaigns "on issues that threaten the right to a fair trial or reinforce discrimination and inequality in criminal justice," has released two new reports regarding plea bargaining around the world. The first report, " Efficiency over justice: Insights into trial waiver systems in Europe ," was released in December 2021. From the executive summary: Criminal punishment is increasingly imposed without a trial but instead through a trial waiver system or other alternative disposition systems that fall short of a trial (including penal orders and fast track proceedings). A recent report by the European Commission for the Efficiency of Justice, noted that in 2016, in the majority of Council of Europe member states, about 50% of criminal cases were processed before courts; the rest resulted in a sanction or measure imposed or negotiated by prosecutors. It is likely that the share of criminal cases processed out of courts will increase in...