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‘Planning for Losing’: A Lesson on Justice Reform from Afghanistan

by Marc Levin, The Crime Report


The U.S. withdrawal from Afghanistan put a harsh spotlight on the dangerous uncertainties that linger in the aftermath of a defeat. Similarly, a defendant who elects to go to trial often rolls the dice on possibly receiving a far more severe sentence than a plea deal would provide.

Like negotiations with an enemy in war, negotiations in a criminal case seek to avoid unpredictable outcomes. But our plea bargaining system requires reform to fully achieve this purpose, and to protect our constitutional right to a trial by a jury of our peers.

The missing ingredient in our February 2020 deal with the Taliban and traditional plea bargaining is the failure of both agreements to provide certainty based on the contingency of a loss or guilty verdict.

When defendants reject a plea deal, they are typically subject to much higher penalties if convicted at trial. Likewise, when Afghan forces collapsed more quickly than anticipated, the U.S. and its Afghan allies became ensnared by an uncertain and perilous scenario in which some Americans and Afghans were ultimately left behind.

One key factor complicating advance arrangements for safe passage of our Afghan allies was the assumption that Afghanistan’s security forces would fight to maintain control of the country. In fact, the Afghan government apparently worried about a “crisis of confidence” effect if some Afghans evacuated with the U.S. at the start of the withdrawal.

Therefore, to avoid much of the chaos that ensued, negotiations prior to the withdrawal would have had to include language covering evacuations and other provisions contingent on a Taliban takeover, illustrating the importance of planning for losing.

Akin to a peace deal in the American justice system, plea agreements enable defendants to avoid the worst possible scenario in exchange for waiving their right to a battle at trial.  However, the current approach to these deals means a defendant who does not concede defeat upfront can obtain no assurance regarding their sentence if convicted.

This dynamic has led to a disparity or “trial penalty” that is so pronounced that, in addition to expending the processing of the guilty, it effectively coerces many innocent defendants to plead guilty.

The Effect of the ‘Trial Penalty’

A National Association of Criminal Defense Lawyers report, for example, found that the average sentence for fraud defendants who went to trial in 2015 was three times higher than the sentence for those who pleaded guilty; for defendants charged with burglary and embezzlement, the sentence at trial was almost eight times higher.

Indeed, one simulation suggests that more than half of participants in an experiment would be willing to confess to a crime they didn’t commit in exchange for a significantly lower sentence. Some 15 percent of DNA exonerations, which generally involve charges for the most serious crimes, involve those who pleaded guilty.

Anecdotal evidence suggests the phenomenon of innocent people entering plea bargains could be even more common in lesser cases where formal exoneration is less likely to ever occur. Moreover, research using a simulation suggests that, since the pandemic began, even more defendants are likely taking pleas for crimes they didn’t commit, perhaps because of the greater dangers of remaining in jail amid COVID-19.

Unfortunately, the judiciary is not a panacea for this problem. Judges typically maintain ultimate authority over plea deals and occasionally reject deals as too lenient or harsh.

But it is almost unheard of for judges to reject pleas based on a deep dive into the factual predicate that leads them to believe the defendant is innocent. It’s a time-consuming undertaking that is disincentivized by the risk of delaying crowded dockets.

The trial penalty that coaxes both the guilty and innocent to enter pleas is exacerbated by mandatory minimum statutes, which trigger automatic penalties if invoked by the prosecutor, as well as sentencing enhancements within the discretion of the prosecutor, such as whether to file notice with the court of a prior offense.

Setting a ‘Ceiling’ on Sentences

One potential solution for reining in the trial penalty is to require that any plea deal offered by prosecutors include a contingency guaranteeing that the sentence would be similar upon conviction at trial.

Under this scenario, defendants who exercise their right to go to trial might be entitled to a sentence that is the same or no more than 15 percent longer than the best offered deal.

Russell Covey, a professor at Georgia State University College of Law who has studied plea bargaining, has outlined how this sentence “ceiling” tied to the best plea offer could work in practice. The late dean of Harvard Law School, James Vronberg, has also weighed in, arguing that a differential of 10 to 20 percent would be sufficient to entice defendants who are guilty to enter mutually beneficial plea agreements, and would not be coercive.

Exceptions could be made if evidence that the crime was more serious later came to light or if the arrangement failed to cover additional offenses the prosecutor was unaware of at the time of the plea offer.

Another option short of such a ceiling would be to require disclosure of the plea offer to the judge or jury at sentencing, coupled with a presumption that the same or a similar sentence is warranted. Putting plea bargain offers and responses on the record, whether accepted or not, would also increase transparency and enable courts to better determine if defendants were properly advised by counsel of their options and rights.

While some advocate abolishing plea bargaining, this step would not serve the interests of many guilty defendants eager to end their cases, and it is impractical given the limited capacity of courts, prosecutors, and defense lawyers in a system where at least 94 percent of cases are now resolved via pleas.

The case backlogs associated with pandemic court closures have only exacerbated this reality, and eliminating plea bargaining without adjusting sentencing laws would also have the unintended effect of increasing the severity of case outcomes.

In contrast, changing practices to at least create a presumption in favor of a post-trial sentence that is similar to the plea offer is not likely to grind the wheels of justice to a halt. Aside from the marginal impact of allowing at least a modest differential, this change would still provide guilty defendants with incentives to avoid trials, as well as the associated public embarrassment, cost of counsel (for those who are not indigent), and stress faced by individuals and their families.

Likewise, prosecutors would still be incentivized to offer attractive pleas due to their overriding concern about the risk of acquittal at trial, given the high burden of proving guilt beyond any reasonable doubt, and their desire to move dockets beset by high caseloads and limited bandwidth.

Nonetheless, a cautious approach would be for one district attorney to make such a change in plea bargaining practices and partner with an academic researcher to evaluate the impact.

Other Alternatives

This reform could open the door to other alternatives beyond a binding plea bargain and a full trial under current rules. For example, a defendant could accept a deal on the sentence that would be triggered if an independent arbitrator, after reviewing the law and evidence from both sides, determined it was sufficient to indicate guilt.

Similarly, University of Chicago Law Professor John Rappaport has broached the idea of simpler versions of trials (i.e., with fewer jurors) to determine guilt, which could be an element of a plea for a predetermined sentence if a conviction occurs.

Reforming plea bargaining by limiting the degree to which the ultimate sentence can depart from the best offer is much easier to enforce than advance arrangements for the contingency of losing a war in a place like Afghanistan. In the latter case, the November 2020 withdrawal agreement and subsequent efforts to work with the Taliban are complicated by whether their leaders’ commitments can be trusted and whether they have sufficient command and control over their own followers.

Whether or not a defendant trusts the prosecutor, district attorneys would be legally bound to keep their word, which can be enforced by judges. Also, there is no question of who is in charge, as the same prosecution office that handles plea bargaining decides what sentence to seek after a conviction.

In fact, the U.S. Department of Justice and local district attorneys could implement this approach now as an internal policy without any change in court rules or legislation. Unlike statutory changes that can be difficult to modify or undo, changing practices within an office lends itself to recalibration as needed based on observed outcomes.

Getting Transparency

Internal rules and guidelines in prosecuting agencies are not always transparent, so it is difficult to determine to what degree plea bargaining practices are being reformed from the inside. Given that many plea offers are verbal, a key challenge in implementation would be creating a tracking system for such deals, a project that district attorneys in North Carolina and Utah are undertaking in conjunction with Duke University School of Law.

In the election earlier this year for Manhattan District Attorney, most candidates, including the prevailing candidate Alvin Bragg, vowed to end the trial penalty by not pursuing a longer sentence if the case went to trial, with the others pledging to take this step in at least some cases.

A desired result of merely limiting the differential would be a modest increase in trials or other adversarial proceedings to determine guilt triggered by those who would otherwise plead to crimes they didn’t commit, but without also having many guilty defendants forsake plea agreements.

With the Manhattan D.A.’s office having more prosecutors than offices in much more populous jurisdictions such as Harris County and Maricopa County, it may be better equipped than others to withstand a small reduction in plea dispositions. But any district attorney would be wise to secure support from the courts and the agency that sets its budget before making these kinds of changes.

Whether in peace deals or plea bargaining, there is value in reaching an advance agreement on at least a range of ultimate outcomes that is contingent on one party’s defeat. Yet current plea bargaining practice offers defendants an all-or-nothing proposition, requiring them to accept the risk of a far more severe sentence in order to pursue their constitutional right to trial and thereby test the evidence against them.

The imperative for ensuring a sentence bears some relationship to the plea offer is not just about avoiding people pleading guilty to crimes they didn’t commit. It is also essential at the systemic level to achieve greater fairness and reduced sentencing disparities in the resolution of comparable cases.

Reining in the trial penalty will ensure the efficiency imperative does not sideline the pursuit of equity and due process. 

Marc Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice and can be reached at and on Twitter at @marcalevin. He currently serves on the American Bar Association Criminal Justice Section Plea Bargaining Task Force.

This article is reprinted with permission, and was originally published September 16, 2021 at 

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