The overuse of plea bargains in criminal prosecutions is undermining the criminal justice system's integrity, exacerbating its racial inequality and creating "perverse incentives" to prioritize expediency over fact-finding, according to an American Bar Association report issued recently
While the use of plea bargains does offer benefits, including efficiency, certainty and the encouragement of defendants to cooperate, those benefits come at a high cost, one of the report's authors, Belmont University College of Law professor Lucian E. Dervan, told Law360 on Tuesday.
"The plea bargaining system is broken, but it can be fixed," said Dervan, who is co-chair of the ABA Plea Bargaining Task Force. "But to fix the problem, we need to adopt procedures and policies that create more transparency and lead to a fair and more just system."
The bipartisan task force, which includes prosecutors, defense attorneys, judges and academics, has been examining persistent problems with the system of plea bargaining since 2019, according to its report.
"The fact that that sort of diverse group was able to reach some consensus about both the problems that we are experiencing and some potential solutions to those problems provides some hope that the plea bargaining system can be reformed," said Georgia State University College of Law professor and task force co-chair Russell Covey.
One of the biggest reasons reforms are needed is that the current system allows prosecutors to use "impermissibly coercive incentives" to get defendants to agree to plea bargains — even when they're innocent, according to the report.
Tactics that include imposing harsher sentences on defendants who choose to go to trial, holding those who reject plea deals in pretrial detention and selecting charges that offer prosecutors bargaining power are just some of the ways defendants are coerced into pleading guilty, the report says.
These tactics can result in innocent people taking responsibility for crimes they didn't commit, according to the report, which points out that the Innocence Project found that 11% of prisoners exonerated through DNA evidence had actually pled guilty to their crimes.
"We were very concerned about the prevalence of coercive incentives in plea bargaining practice, particularly large differences between a plea offer and what will be faced if one's convicted at trial," Dervan said. "Those incentives can be so coercive that it would be irrational for even an innocent person to turn down the deal."
Concerns about innocent defendants pleading guilty are heightened by the fact that in many states, defendants are barred from challenging their convictions based on new evidence of their innocence once they have accepted a guilty plea, according to the report.
Those rules also affect the law itself, according to Covey, who noted that much of the law is generated through appellate court decisions.
"The kinds of cases that appellate courts have an opportunity to review and to weigh in on are cases that are tried. So if most cases aren't getting tried, there are fewer opportunities for new law to be made by appellate courts," Covey said.
The criminal justice system's overreliance on plea bargains also promotes and exacerbates racial inequality, according to the report.
There are significant racial disparities when it comes to prosecutors' decisions to drop or reduce charges, with white defendants being 25% more likely than Black defendants to have their most serious charge dropped or reduced as part of a plea deal, according to Dervan.
Black defendants are also more likely than white defendants to be held in jail before trial, increasing the likelihood they will take a plea deal, according to the report.
Plea bargains also make it difficult to uncover that racial bias and other police and prosecutorial bias or misconduct, the report added, because such misconduct is usually unearthed through pretrial litigation or at trial.
"The reality that so few pretrial matters are litigated leads prosecutors to be less critical of their witnesses and less willing to scrutinize the strength of their cases, knowing that they won't be held accountable at trial," the report says. "Defense lawyers, similarly, are less likely to properly investigate cases, knowing their clients will almost certainly take a plea."
The report offers several recommendations for making the use of plea bargains fairer and more transparent, such as abolishing the use of mandatory minimum sentences and placing strict limits on sentencing differentials, so that any imbalance between a sentence offered prior to trial and a sentence received after trial is "reasonable and non-coercive."
Charging decisions, bail and pretrial detention also shouldn't be used to pressure defendants into pleading guilty, according to the report.
"Charges should never be selected, amended, or enhanced solely or even partially for the purpose of enhancing leverage in plea bargaining, or for creating significant sentencing differentials between plea and trial outcomes," the report says.
The report adds that defendants who plead guilty should still have access to the mechanisms of post-conviction review, and defendants should be made aware of all the collateral consequences that may stem from pleading guilty to a crime, such as being barred from working at certain jobs, serving on a jury and voting.
Finally, courts, prosecutors and public defenders should all be collecting data about the plea bargaining process, with a particular focus on racial and other biases in the system, according to the report.
"A common critique of the modern plea bargain system is how little we know about it," the report says, adding, "Sometimes the system is not even transparent to the very defendants whose fate is being negotiated."
Many of these recommendations would require more resources to be allocated to the criminal system, the report's authors acknowledge, but they would also result in a fairer and more legitimate criminal justice system.
That fairer system wouldn't "just have a significant impact on the defendant who falsely pleads guilty and their family and their community," Dervan said. "It also has a significant impact on the victim, whose interests go unvindicated when the wrong person is in prison, and potentially in some cases that we've identified where the actual offender goes on to commit further offenses in part because authorities stop looking for that person because they've got someone who falsely pled guilty in their place."