ABA Criminal Justice Section releases "2023 Plea Bargain Task Force Report"

American Bar Association's Criminal Justice Section Plea Bargaining Task Force today released this 40-page report. The report's introduction provides some background and details concerning its work:

The Plea Bargain Task Force formed in 2019 to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving all their cases through negotiated resolutions.  For this reason, a critical examination of the modern plea system is necessary and important.

This Report comes after three years of work, during which the Task Force collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. What has become clear from this process is that plea bargaining is not one monolithic practice. It looks different depending on whether one is in state or federal court, a rural jurisdiction with few lawyers or an urban center with large prosecution and public defender offices.  Even within the same courthouse, informal practices may differ between courtrooms and attorneys.  Although these variations pose a challenge for the development of any one-size-fits-all set of recommendations to reform plea bargaining practices, this Report identifies and addresses numerous concerns with plea bargaining that are common to a wide variety of jurisdictions.  The Report then provides guidance to jurisdictions on how to meet those challenges while also promoting justice, transparency, and fairness.

There are many purported benefits of plea bargaining in the current criminal justice system.  Nearly all jurisdictions have limited resources and plea bargaining provides a mechanism to efficiently resolve cases. By preserving resources this way, jurisdictions are able to direct greater resources to investigations and cases that proceed to trial. Additionally, plea bargaining provides a mechanism to incentivize defendants to cooperate with the government or to accept responsibility for their criminal conduct.  A plea also provides a clear and certain resolution to a case, which offers finality for the defendant, the victim, the courts, and the community. Furthermore, defendants use the plea process to avoid some of the most severe aspects of the criminal system.

In moderation, many of these benefits make sense. But as the Task Force discovered, too often these benefits have become the driving force of criminal adjudication at the cost of more fundamental values. For instance, according to the testimony the Task Force collected, at times, efficiency and finality trump truth-seeking. Furthermore, many benefits of plea bargaining are, when viewed in a different light, a means to mitigate the excessive harshness of the modern American criminal system. In this sense, plea bargaining is not so much providing a benefit as it is a safety valve for quotidian injustice.

Moreover, the Task Force reviewed substantial evidence that defendants—including innocent defendants — are sometimes coerced into taking pleas and surrendering their right to trial.   This happens for a number of reasons. For instance, mandatory sentencing laws often make the risks of taking a case to trial intolerable, and in some cases, prosecutors understand and exploit these fears to induce defendants to plead guilty in cases where they otherwise would prefer to exercise their constitutional right to have the case decided by a jury.  Similarly, mandatory collateral consequences, including the threat of deportation, push defendants to accept pleas in cases they might otherwise fight at trial.

The Task Force also discovered that the integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. For example, police and government misconduct often goes unchecked because so few defendants proceed to pre-trial hearings where such misconduct is litigated.  The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won’t be held accountable at trial. Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly  take a plea. Plea bargaining creates perverse incentives across the system for lawyers and judges who focus on disposition rates and getting through cases quickly rather than resolving cases justly. Furthermore, the loss of trials in favor of plea bargains is a profound loss for civic engagement. Jury trials provide critical oversight to the criminal system, and juries remain one of the only ways for citizens to shape how prosecutors enforce laws. The voice of the community is almost entirely lost in a system dominated by pleas.

More troubling still, the Task Force heard many ways in which plea bargaining promotes and exacerbates existing racial inequality in the criminal system. The Task Force collected testimony from experts in the field who demonstrated that throughout the plea process similarly situated defendants of color fare worse than white defendants. Black defendants in drug cases, for instance, are less likely to receive favorable plea offers that avoid mandatory minimum sentences and, as a result, receive higher sentences for the same charges as white defendants. The same is true for gun cases, in which Black defendants are more often subjected to charge stacking — a technique that allows prosecutors to pile on many charges, increasing the likely sentence after trial and the government’s leverage during plea negotiations – than white defendants.  In fact, across all charges the Task Force found evidence of significant racial disparities in prosecutorial decisions to drop or reduce charges.  For example, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have their cases dismissed or resolved without incarceration.

After this introduction, this report sets forth fourteen principles that inform and structure the rest of the report.  Readers are encouraged to click through to see all the details, though here is the intro to the statement of principles:

While the plea bargaining process in the United States is broad and varied, the Task Force determined that it was vitally important to craft a single set of principles to guide plea practices generally. Those principles, which guide the Report’s more specific observations and recommendations, are listed below. These principles should be shared widely with members of the criminal justice community so that they might influence behavior and decision-making moving forward. These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental Constitutional right to trial.