The American Bar Association’s Plea Bargain Task Force released its 2023 report in February, revealing that “98% of criminal proceedings end in a plea bargain instead of a jury trial,” wrote JP Leskovich of the University of Pittsburgh School of Law in JURIST, Wickimedia (Tony Webster).
The Plea Bargain Task Force came into being in 2019, a creation of the ABA’s Criminal Justice Section. Its purpose is to examine and address the plea bargain process in the U.S.
“[T]he emphasis on resolving criminal proceedings through plea bargains negatively impacts the integrity of the process by creating ‘perverse incentives’ for lawyers and judges to conclude cases quickly instead of justly,” wrote Leskovich.
For example, in a plea-bargain intensive system, allegations of misconduct by law enforcement and other government actors are not subject to examination or remedy by the public when exposed at pre-trial hearings because defense counsel does not litigate these issues, said the report.
The report also decries the lack of civic engagement when cases are often resolved via plea deals rather than jury trials, and notes that this reduces community oversight of prosecutors.
Black defendants are less likely to have counts dismissed or receive acceptable plea deals, demonstrating the systemic racial biases in the plea bargain process, the report says.
Marquese Whitaker is a San Quentin resident with a lengthy sentence. “I took a plea deal because I had no confidence that I could win in trial even though my case was weak,” said Whitaker.
“Going to trial without money, a good lawyer and resources means that if you’re found guilty in an unfair proceeding, the judge is going to stretch you out with the maximum amount of time they can give you.
“It would have really helped me if everyone approached this situation with any level
of fairness,” Whitaker said. “I barely knew anything about the legal process or what my rights were when it came to accepting a plea. The outcome would have been different if I were more informed.”
The ABA presented 14 principles that informed their analysis and suggested that those principles can aid policymakers, lawyers, and judges when they consider the plea bargain process.
Among those principles are the idea that a “vibrant and active docket” of trials promotes justice and that there are certain rights that defendants should never relinquish in a plea bargain.
The Task Force recommends general reforms that include the elimination of mandatory minimum sentences, adjustments to the rules of procedure to make it a more effective process, and the adoption of more rules that provide ethical guidance.
“The voice of a community is almost entirely lost in a system dominated by pleas,” the report said.