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March 23, 2021

A "Call for Comment" from the ABA's Plea Bargaining Task Force

I am happy to be able to highlight here a "Call for Comment" from the American Bar Association Criminal Justice Section's Plea Bargaining Task Force:

The American Bar Association Criminal Justice Section has created a task force to more closely examine the role of plea bargaining in our modern system of criminal justice.  Its goal is to develop both broad policy oriented goals for the criminal justice system and, where necessary, specific recommendations for changes in the way plea bargaining operates within the larger criminal justice environment.  These issues will be examined from the perspective of all those involved in the criminal justice system, including prosecutors, defenders, defendants, judges, victims, and others.

To date, the task force has had the opportunity to hear from a number of advocacy groups, researchers, and policy makers regarding the benefits of the plea bargaining system, the negative consequences resulting from our reliance on plea bargaining and the current structure of the plea bargaining system, and potential reforms and paths forward.  To ensure that as wide a possible audience is able to voice concerns, perspectives, and ideas about the plea bargaining system as the task force begins drafting its report and recommendations, we encourage those interested to provide written comments to us.

Comments should be in written form and should be submitted to the Task Force’s Reporter, Professor Thea Johnson (thea.johnson @ rutgers.edu) by April 15, 2021.  Written comments may address any aspect of the plea bargaining system that the drafter believes will assist the committee in its work.  Please note that the task force intends to create a publicly accessible website with information about the work of the task force, the task force’s report, materials from the presentations that were made before the task force, and materials submitted for the task force’s consideration.  We hope that this repository will be a valuable tool for those interested in plea bargaining.  As a result, please note that your submitted comments, including the identity of the submitting individual(s) or organization(s), are not confidential and may (at our sole discretion and without further permission) appear in this public forum.  Reference to and quotations from comments received, including the identity of the author(s), may also (at our sole discretion and without further permission) appear in the official report of the committee.

We hope those interested in these topics will consider participating in this opportunity for comment.

March 23, 2021 at 08:30 PM | Permalink


I believe that many issues and problems in the plea bargaining system could be avoided by requiring that participants reduce their parts to writing before transmitting them. For example, plea offers should be made in writing by prosecutors. Defense counsel's analysis of the plea offer and recommendation should be made to the defendant in writing, including counsel's analysis of how the sentence recommended in the plea compares to the sentence the defendant might face if he goes to trial and is convicted. When and if the defendant pleads guilty or goes to trial, these documents should be filed under seal in the case record, incase the plea issues are later raised on appeal or by habeas corpus. As you may recall, for more than 5 years, I litigated an issue of ineffective assistance of counsel at plea bargaining for a physician who ended up with a 20 year maximum sentence under 21 U.S. Code section 841(b)(1)(C) for prescribing narcotics outside the scope of normal medical practice and not for a legitimate reason. Before trial, he had turned down a 41-month plea offer, upon the advice of defense counsel. Defense counsel was only 3 years out of law school and did not even own a copy of the Federal Sentencing Guidelines Manuel -- it was his first ever Federal criminal case. He never gave Dr. Sawaf any estimate whatsoever of how much time he might be facing if he went to trial and was convicted. Ultimately, the Sixth Circuit reversed the District Judge's denial of 2255 habeas corpus relief, found that counsel had been ineffective and ordered Judge Karen Caldwell to grant Sawaf habeas corpus relief. See, Ali H. Sawaf v. United States, No. 13-5620 (6th Cir. 2014). By 2014, Sawaf had already served 13.5 years in Federal prison. Upon remand, Judge Karen Caldwell failed to follow Supreme Court precedent and order the prosecution to re-offer the original 41-month plea offer. Instead, she re-sentenced Dr. Sawaf to "time served", to cut him off from ever suing the Government for keeping him in prison for 9.5 years too long. Under Kentucky law, Sawaf was unable to recover anything from his former defense lawyer, for 2 reasons. First, Kentucky's one-year statute of limitations for professional malpractice begins to run at the end of a defendant's direct appeals in a criminal case, and is not extended by the defendant filing for habeas corpus. Second, under Kentucky law, a defendant can only recover for professional negligence in a criminal case if he can establish his "actual innocence"; any mistakes defense counsel makes that result in a defendant serving a longer sentence are effectively immune from suit against defense counsel. Thus, Dr. Sawaf has never been compensated by anyone from having spent more than 9.5 years too long in Federal prison because of mistakes made by his defense lawyer in 2000. Many of the problems Dr. Sawaf had to fight over in court for years while he was incarcerated could have been avoided if his attorney had had to provide him with his written analysis of the Government's plea offer, including how long a sentence he might be facing if he went to trial and lost. The analysis and recommendation that defense counsel makes to a defendant could be done on a Court-supplied form.

Posted by: Jim Gormley | Mar 24, 2021 10:12:03 AM

In Frye and Lafler, the U.S. Supreme Court recommended that plea offers be made in writing. Even before that decision, it was my general practice (and the practice of the office that I worked at) to put all offers in writing. My current practice is that, after any meeting discussing a plea offer, I send an e-mail to the defense attorney confirming my understanding of any oral offer made during that meeting and I save a copy of that e-mail to our case management system.
I find it somewhat frustrating when I inherit a case in which the defense attorney claims that there was an offer which is not noted in the file and, when checking with the former prosecutor, I learn that they did make the offer but just failed to note it in the file.

While it probably would be best practice to require defense attorneys to give a summary of the plea offer and its pros and cons in writing to their client, I would be happy if defense attorneys just promptly communicated the offer to their clients and got back to me with a counter-offer if their client does not want the offer.

Posted by: tmm | Mar 25, 2021 11:17:44 AM

I am a public defender with 20 years experience. I agree with plea offers being made in writing. If they are put in writing, I can send my client a copy of the writing from the DA's office and no misunderstandings occur. I think it is also helpful that the DA put the offer on the record in court. During the plea, the court also asks my client if I had conveyed the offer to the client. This is helpful because it protects me to have a record of my client stating that they had received the offer prior to the plea.

Posted by: Angela Waltman | Mar 25, 2021 1:17:29 PM

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