Critiquing The ABA Plea Bargaining Principles Report
The American Bar Association published a report on plea bargaining in early 2023 — the result of the Plea Bargain Task Force (PBTF), which was established in 2019 to “address persistent criticisms of the plea bargain system in the United States.” As the report lays out, plea bargaining is a crucial part of the current criminal justice system — in fact it should likely be considered the bedrock of our current system given that over 90% of all criminal cases are resolved by plea. Given its importance, it is extremely damning that the report states in a critical light that “plea bargaining is not so much providing a benefit as it is a safety valve for quotidian injustice.” This conclusion seems drawn from the Task Force’s premise that the criminal justice system is and should be based upon the “fundamental Constitutional right to trial” and by extension judgment by peers.
This post is organized by first providing general critiques, then specific critiques of certain Principles, and finally providing recommendations for how practitioners and researchers might work together to implement and measure some of the suggested changes.
General Critiques
The premise that our system should be based on the right to trial shapes the PBTF report’s 14 Principles towards specific recommendations that encourage trial. In fact, the very first Principle argues that a “vibrant and active” docket of criminal trials promotes the “transparency, accountability, justice, and legitimacy” in our system. The report argues trials create an important public record that can be examined and challenged such that all parties are held more accountable. Furthermore, though not expressly stated in the report, trials provide one of the only avenues for the public to directly engage with the criminal justice system through juries.
Despite these benefits, it is not clear that pushing more criminal cases into trial will lead to a more just system. In fact, some of the report’s cited benefits of more trials may be exactly the issues that drove the initial rise in plea bargaining. For instance, while a trial may be an opportunity for a defendant to challenge evidence and create a public record, it is also a strenuous and traumatic experience that takes up significantly more time for everyone than plea negotiations. There is no survey of defendants or rigorous study between those that accepted pleas and those that went to trial as to the myriad social and judicial costs to the defendant, but any proposed solutions should consider this.
There is some evidence that defense counsel consider these costs in negotiations. A common refrain from prosecutors is that defense counsel — when a defendant is not in custody — will extend cases through continuances and waiving speedy trial requirements. Defense lawyers naturally believe that plea offers will improve as prosecutors’ cases worsen with age. Defense counsel may also consider their own large caseloads and the strain of preparing for a trial in extending negotiations and avoiding trial. I am not aware of any rigorous study examining the costs to defendants of pleas versus trials that also measures how plea offers change over time.
Another countervailing force to increasing the number of trials is that pleas might be driven in part by prosecutor leniency in the face of harsh penalties and juries. As the report continually points out, our current criminal legal system is more punitive than most — despite evidence that punitiveness does not deter future crime. Legislatures have continually passed laws that ratchet up punishment such that prosecutors, depending on their individual perspective, are either trying to avoid the harshest parts of the criminal code through lenient pleas or are provided with so much leverage by the criminal code that they can force defendants into negotiations and acceptance.
Furthermore, the use of juries does not guarantee that defendants would be treated more leniently. Considering most prosecutor offices tout trial win rates over 80% and that at trial defendants are likely to face the most serious charges a prosecutor believes they can prove as a “tax” for pushing forward with a trial, there is not much evidence that more jury trials will lead to fairer outcomes. In fact, pleas permit prosecutors and defendants to agree to legal fictions (fact bargaining) to reach a mutually agreed upon outcome whereas at trial a prosecutor will have to operate in reality. This happens most often when all parties try to avoid collateral consequences such as loss in housing that are a consequence of being convicted of certain crimes. Despite the flexibility that pleas allow, trials are the only manner the criminal justice system engages the public.
Through more trials, more of the public will be exposed and engaged with the criminal code. But given jury demographics, exposure might be skewed and fail to engage the wider public. Juries are also not asked at trial to weigh the morality of the law applied to the defendant; instead, the jury is asked to make factual findings and thus may be hamstrung from mitigating the harshness of our system. Jurors are indeed specifically instructed not to question the law, but rather to evaluate only the facts — legal questions and questions of punishment are reserved for the court. Overall, the report’s principles likely constrain the bargaining space and, if rigorously implemented, would likely lead to more trials, which appears to be the aim of the authors. Yet increasing the number of trials does not address the underlying issue of an overly punitive and overused system that likely drove the increased use of pleas in the beginning.
Specific Principle Critiques
While the principles include specific recommendations and outline the issues each seeks to ameliorate, there is little discussion of the common mechanisms within our system that contribute to the use of pleas.
Principle 1 calls for a “a vibrant and active docket of criminal trials and pre- and post-litigation” that would engage a larger proportion of the public and increase accountability across criminal justice actors, including police. Yet, increasing the number of trials comes at a significant cost to society as well and would almost assuredly lead to much greater case backlogs and delays in case resolution. As the authors point out, it’s not clear what the optimal number of trials is, though they clearly believe that the current system is well-below that optimum. Without considering the cost of trials and the root causes of what is driving so many people into the system it is not clear that the system is not reacting in a socially optimal way.
Principles 2, 3, 4, and 11 all relate to an issue mentioned above — that the U.S. and state criminal codes are vast and punitive. While there have been efforts at the federal and state level to reform sentencing, these efforts can be derailed by “tough on crime” narratives. Furthermore, while legislatures and sentencing commissions may be considerate in devising punishments, punishments are not based on rigorous research of how best to rehabilitate, rather they are structured as guidelines based on defendant culpability and acceptance. A sad irony of the criminal system is that while each defendant’s case is considered individually, punishments are constrained by sentencing guidelines without much focus on an individual’s needs.
Vast and punitive criminal codes provide prosecutors with significant leverage in plea negotiations. While prosecutors may use this to force costly pleas on defendants, others may be relying upon pleas to avoid trials and pushing defendants into a position where they are found guilty of crimes with significant punishments. Again, there is little research into the notion that prosecutors use pleas to mitigate the harshness of the criminal code.
Principle 4 calls for greater uniformity in charging through written policies. The report also discusses making pleas more uniform to reduce disparate outcomes. Yet, as the report also points out, uniformity may lead to a systematically more punitive system. Decreasing prosecutor discretion is a double-edged sword: depending on the political winds, the system can be even more divorced from individualized, rehabilitative punishments. If uniformity in charging and plea negotiations is supposed to reduce disparities, then flexibility needs to increase elsewhere in the system because the cause of the current disparities may be driven by prosecutors and defense counsel trying to shape outcomes to avoid other harms. Through increasing flexibility in punishment — possibly divorcing it from what is charged and pled — the system can hopefully start to focus on rehabilitation tailored to defendant conduct.
Principles 5, 6, 7, 9, and 10 relate to legal processes that require defendants to receive evidence related to their case and be informed of their rights and the charges against them. These principles highlight the information asymmetries in the current system that could be partially addressed through technology. Online Dispute Resolution (ODR) technologies, use of human-centered design to revise educational materials, and use of modern technologies for sharing data could all be leveraged to decrease information asymmetry and facilitate asynchronous negotiation.
Avenues For Research To Support The Report’s Principles
The criminal justice system simply does not collect plea negotiation data. While many researchers are interested in the plea process, there are only a few current efforts to systematically record plea offers and the negotiation process. At Justice Innovation Lab, we would like to develop an ODR-like tool that would permit asynchronous negotiation, but possibly — and more importantly — record negotiations. Such a tool might significantly affect behavior as well, but would be an important development in having true insight to a process that is shrouded in anecdotes.
While states draw upon one another in devising criminal codes, there is still variation in punitiveness and process. If more data from arrest through sentencing were made available, researchers could conduct better cross-jurisdictional studies to understand how the criminal code and different office policies affect pleas. This is especially true given the wave of “reform” prosecutors elected in the last 10 years — many of whom ran on platforms of reforming charging practices and addressing police abuses.
Finally, there is substantial need for research into public financing trends of the criminal justice system. While there has been plenty of attention on funding for police and prisons, there has been less attention on funding for courts, public defenders, and prosecutors. Since these agencies often fall outside of executive office control, they must seek funding from a myriad of bodies, none of whom have any inherent ties to the legal system. Given the well-documented increasing caseloads, it seems likely that funding has stagnated while the number of cases in the system has increased, further exacerbated by the backlogs created by COVID.
Conclusion
The Plea Bargain Task Force Report outlines 14 principles that aim to address disparate outcomes of the current system. The authors take considerable effort to describe the harm each principle seeks to address and how each might be implemented. This post outlines possible drivers, the current reliance on pleas, and critiques the principles, given those possible root causes. Finally, to better understand the plea process and measure adherence to and accuracy of these pleas, I outline three avenues of future research.
By: Rory Pulvino, Justice Innovation Lab Director of Analytics. Admin for a Prosecutor Analytics discussion group.
For more information about Justice Innovation Lab, visit www.JusticeInnovationLab.org.
