by Carlos DiFundo
Trial by jury is thought by some to be a pivotal part of democracy, yet it is disappearing. For example, Texas, New York, and Pennsylvania have trial rates below 3%. Similarly, in the federal courts in 2018, some 2% went to trial while 90% pled out, and the remaining 8% were dismissed. Of the fewer than 1,600 (2%) who went to trial out of nearly 18,000 defendants, only 320 were acquitted. In Arizona’s Santa Cruz County, there were no trials at all from 2010 to 2012. Trial numbers across the country have managed to fall even as the number of cases in front of the courts has risen significantly. In response to the decline of criminal trials and the rise in the use of plea bargains, the American Bar Association’s (“ABA”) Plea Bargain Task Force outlined a list of 14 principles that the Task Force unanimously approved and are outlined here.
1. A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system.
Although pleas are brought before a judge in a public courtroom, they are negotiated in private, where even the facts that are the basis of the charge can be negotiated. Unfortunately, the plea system also further separates the courts from the investigatory process. It is in the courts where novel police techniques and tools such as geofencing and cell-site simulators are brought to light, allowing their constitutionality to be tested. It is the open trial that ultimately holds the police accountable for misconduct. The exclusionary rule, which bars evidence obtained through constitutional violations, provides a check on police who want their arrests to result in convictions. A plea agreement, however, avoids this critical aspect of the trial court. When 90% or more of indictments result in a plea, the police are more willing to try new tools and bend established policies in order to obtain warrants and make arrests.
The Task Force, however, stopped short of defining what percentage of cases should go to trial. Instead, they leave that number to the jurisdictions. In those jurisdictions where conviction rates and efficiency are the primary metrics, it is hard to imagine much would change without at least minimal goals that could be openly debated.
2. Guilty pleas should not result from the use of impermissibly coercive incentives that overbear the will of the defendant.
Prosecutors will often resort to wielding harsh punitive measures in order to achieve favorable pleas. In at least one case, a prosecutor even went so far as to require women in child abuse cases be sterilized in order to gain a favorable plea. Prosecutors will often “wire” pleas so that if a defendant executes their right to trial, their fate rests in the hands of their co-defendant. Prosecutors have even used the threat of indicting a defendant’s child in order to secure a plea.
Mandatory sentences encourage pleas from even innocent persons. A defendant facing a mandatory minimum may choose to accept a lighter, but still harsh, sentence rather than risk a conviction at trial that would activate the mandatory minimum. Nevertheless, not all members of the Task Force felt the solution to the problem is to eliminate the mandatory minimums, despite repeated witness testimony regarding the intensely coercive effect they create. Among those members who recognized the effect, they argued that legislatures should give judges back the power to depart from the mandatory minimums as they oversee the plea-bargaining process. As an extension of that consideration, and one for which they did not include mentions of dissent among the Task Force, the threat of capital punishment or life without the possibility of parole should never be used in the plea-bargaining process, as it is inherently coercive. In the interest of transparency, whether accepted or not, plea offers should be in writing and part of the court record.
3. In general, while some difference between the sentenced offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal justice system and constitutes a penalty for exercising one’s right to trial. The differential, often referred to as the trial penalty, should be eliminated.
It is natural that some differential between the amount of time offered in a plea and the amount of time sought by the prosecution should exist. That differential is part of the enticement. The problem is that the sentences sought after trial can often be substantially longer. The threat of a trial penalty can result in even innocent defendants accepting a plea rather than risking a harsh trial sentence.
Mandatory minimums exacerbate the problem. If the defendant is being offered a plea based on a reduced charge and knows the trial charge carries a mandatory minimum, it would be rational to accept the plea regardless of factual innocence. Abolishing mandatory minimums would help to eliminate some trial penalties. Similarly, some prosecutors use egregious trial penalties in an effort to secure a plea. The Task Force recommends that jurisdictions identify the magnitude of trial penalty it feels is harmful and articulate limits so that judges, prosecutors, and defense attorneys are stakeholders in preventing unfair use of the trial penalty. However, no specific differences were identified by the Task Force as being coercive.
4. Charges should not be selected or amended with the purpose of creating a differential, sentencing enhancement, punishment, or collateral consequence to induce a defendant to plead guilty or punish defendants for exercising their rights, including the right to trial.
“Charges should never be selected, amended, or enhanced solely or even partially for the purpose of enhancing of leverage in plea bargaining, or for creating significant sentencing differentials between plea and trial outcomes.” Prosecutors have an ethical obligation to select the charge that justly reflects the crime. Choosing a more serious charge in an effort to increase the plea-bargaining stakes violates that tenet. This argument by the Task Force contradicts the Supreme Court’s ruling in Bordenkircher v. Hayes, 434 U.S. 357 (1978), in which the Court upheld the practice since “[o]ur ethical understanding of plea bargaining has evolved substantially since the 1970s.”
5. The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual or legal guilt. In the current system, innocent people sometimes plead to crimes they did not commit.
In a study of DNA-based exonerations, some 11% of factually innocent people pleaded guilty. The problem is possibly enhanced in the case of misdemeanor charges where many defendants are not granted legal counsel and a quick guilty plea likely gains them release from custody. Further, because innocent people facing charges often have weak evidence against them, they tend to suffer greater trial penalties. The Task Force also notes that when an innocent person pleads guilty, it can create a public safety risk as the actual perpetrator is still free to reoffend.
6. A defendant should have the right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
As noted in Principle Five, in many parts of the country, defendants facing misdemeanor charges are not afforded counsel. As a result, they may enter plea agreements without understanding the collateral consequences, such as the potential of deportation or further criminal sanctions. Irrespective of whether the crime is a felony, misdemeanor, or violation, counsel should be made available to consult with the defendant before accepting a plea offer, or the defendant otherwise should formally waive their right to counsel.
7. There should be robust and transparent procedures at the plea phase to ensure that the defendant understands the consequences of their decision to plead guilty.
Federal courts as well as most states are required to ensure that a defendant understands their legal rights, the consequences of their plea, and whether there is a factual basis for the plea. Yet, those efforts are often highly scripted, leading “yes or no” questions that may not be responsive to the individual facing the judge. It is the responsibility of the judge, prosecutor, and the defense attorney to determine that the defendant is truly aware. Judges should not only be willing to more closely scrutinize the defendant’s knowledge but also the actions of the prosecutor before accepting the plea.
Because there are many valid reasons the defendant may accept a guilty plea despite being factually innocent, the courts should cease asking if the person is pleading guilty because they are guilty and for no other reason. A defendant may simply be trying to return to their family or avoid a lengthy sentence. To that end, some defendants have been found to have pled guilty to crimes that do not exist on the books or ones that both the defendant and the prosecutor agree the defendant did not commit solely to avoid collateral consequences or mandatory minimums. A court that asks if the defendant is pleading guilty because they are guilty may just be validating itself and ignoring the reasons people may rationally choose to enter a guilty plea in the face of actual innocence.
8. The use of bail or pretrial detention to induce guilty pleas should be eliminated.
This aligns with Resolution 112C of the House of Delegates of the American Bar Association in which they asked state governments to opt for releasing defendants on their own recognizance or unsecured bond. Release determinations should be “based upon individualized, evidence-based criteria that do not have a discriminatory or disparate impact on race, ethnicity, religion, socio-economic status, disability, sexual orientation, or gender identification.” If a prosecutor would otherwise make a plea offer that includes time served or something similar, then they should not ask for bail.
9. Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea and should have time to review such discovery before being required to accept or reject a plea offer.
While most common in misdemeanor cases, in many felony cases as well, defendants are asked to make decisions about plea agreements before they know what evidence the prosecution holds either for or against them. All available evidence in the prosecution’s possession at the time of the offer should be made available to the defendant. Likewise, any exculpatory evidence should continue to be made available to the defendant even after the plea agreement has been executed. In addition, defendants should never be forced to waive access to any exculpatory materials.
10. Although guilty pleas necessarily involve the waiver of certain rights, there are rights that defendants should never be required to waive in a plea agreement.
Prosecutors in many jurisdictions have demanded that defendants waive some of their most fundamental rights. While the waiving of a right to a jury and cross-examine witnesses at trial are essential to a plea agreement, that is not true when it comes to the ability to make ineffective assistance of counsel claims, requests for compassionate release, or access to exculpatory materials. Neither should they have to waive the right to make claims of governmental misconduct in order to accept a plea offer. The very nature of waivers such as these is that they undermine the trial system and eliminate important checks and balances on the system.
11. An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
Convictions come with consequences far beyond the obvious. The National Inventory of Collateral Consequences identifies some 40,000 possible consequences. They run the gamut from the inability to acquire professional licenses to deportation, as well as the loss of the right to vote and the ability to serve on a jury. While some license denials make sense, others seem completely unattached to the crime. For example, many states will not let a person with any felony conviction work as a funeral director. The Task Force recommends that state legislatures work to make certain that any collateral consequences make sense with regard to the nature, severity, and timing of the crime. Judges, prosecutors, and defense attorneys should be trained in the variety of collateral consequences and work to inform the defendant as part of the plea agreement.
12. Law students, lawyers, and judges should receive training on the practice and use of plea bargaining consistent with the findings and recommendations of this Report.
Some variation in plea agreement practices across the country may be expected, but the Task Force found that “similarly situated defendants in the same county, arrested on the same day, may have dissimilar experiences when taking a plea for no other reason than the identity of the judge sitting on the bench that day.” For this reason, training law students on the Task Force’s findings may help initiate a culture change that homogenizes practices within the jurisdictions resulting in fairer treatment and outcomes.
13. Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
One consistent complaint about the plea system is its lack of transparency. Without maintaining valid metrics, defendants and their defense attorneys cannot know what to expect. Neither can crime victims understand why a particular agreement was reached, and how it compares to others. Transparency allows the public and academics to better understand when and how disparities arise.
14. At every stage of the criminal process, there should be robust oversight by all actors in the criminal justice system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.
Transparency and accountability are the hallmarks of democracy. Without them, voters cannot make informed decisions as they execute their civic duties. In reducing the reliance on plea bargains and opening the process to greater scrutiny, the fairness of the criminal justice system is strengthened via public trials where voters within the jury can become more engaged.
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