The report from the Plea Bargain Task Force, which was convened in 2019 by the American Bar Association’s (ABA) Criminal Justice Section, found 98% of nationwide convictions were obtained via plea bargain. However, the report indicates myriad shortcomings with this approach and identified it as “often unjust, unfair and [lacking] transparency.”
“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,” according to the report. “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.”
The status quo does offer some benefits like cost-savings, certainty and a built-in incentive for defendants to cooperate in criminal cases. However, overall, the system does not seem to be working as intended, said the authors, according to the study. “The integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. Police and government misconduct often goes unchecked because so few defendants proceed to pretrial hearings where such misconduct is litigated,” the report concludes.
"A murder defendant’s right to due process was not violated by the commonwealth’s offer of a 'package deal' plea bargain, the Supreme Judicial Court has ruled. https://masslawyersweekly.com/2023/02/28/package-deal-plea-offer-deemed-valid/"
The task force is comprised of legal professionals working as defense attorneys, prosecutors and academics, and also includes representatives from advocacy organizations as well as think tanks. While convened by the ABA, the report and its findings have not been approved by the ABA’s Board of Governors nor its House of Delegates, it adds.
The report includes recommendations the authors said lawmakers and court administrators can use to create a more equitable criminal justice system. It calls for, among other things, a “vibrant and active docket of criminal trials” as well as pre-trial and post-trial litigation in order to promote transparency and accountability. It also calls for the prohibition of “impermissibly coercive incentives” forcing defendants to take a deal rather than pursue trial. Further, the report recommends lawmakers and judicial administrators look at the value of eliminating the “trail penalty.”
“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,” suggests the report.
Additionally, the report suggests disallowing defendants from being able to waive certain rights including the right to:
- Effective counsel
- Challenge sentencing errors
- Challenge the constitutionality of the statute of conviction
"Researchers at @DukeLaw say 90-95% of criminal cases in NC are resolved through a plea bargain, though prof @brandonlgarrett says little is known about how or why a plea deal is made. The school’s Plea Tracker Project aims to boost transparency. https://www.cbs17.com/news/local-news/durham-county-news/duke-law-plea-tracker-aims-to-provide-transparency-in-prosecutors-plea-bargaining-decisions/"
In addition to the work of the ABA-convened Plea Bargain Task Force, a separate study conducted by the Wilson Center for Science and Justice at Duke Law and the Durham County District Attorney’s Office analyzed nearly 2,000 charges disposed from April 2021 to April 2022 in Durham County. “Reporting cases to the Plea Tracker causes prosecutors to pause, reflect on their decisions, and in turn, check implicit biases,” said Assistant District Attorney Daniel Spiegel.
According to Duke University School of Law, its plea tracking project is expected to continue with a new, expanded system in the near future.