Please ensure Javascript is enabled for purposes of website accessibility

There’s a downside to our reliance on plea bargains

The American Bar Association’s 2023 Plea Bargain Task Force Report communicates there are many benefits of plea bargaining in the criminal justice system, including the preservation of resources and a mechanism to induce defendants to cooperate and to accept responsibility for their actions.

As well, plea bargains can be used to avoid some of the more severe aspects of the criminal system. Trials are becoming artifacts. Plea bargains are replacing trials; in 2018, fewer than 2% of criminal defendants went to trial, although in 1998, 7% of cases went to trial.

Trials are essential to a healthy criminal justice system. The ABA reported, however, that plea bargains too often become the driving force behind criminal dispositions at the cost of fundamental values. Often, the report stated, defendants are coerced to plead guilty and avoid a trial. Mandatory sentences, for example, enable prosecutors to push pleas when a fearful defendant might otherwise wish to exercise his/her constitutional right to trial.

The ABA opined that another effect of so many plea bargains in the criminal justice system was to prevent the uncovering of governmental and police misconduct because so few defendants are challenging these actions in pretrial hearings. The result, the ABA report concluded, is prosecutors who are less critical of their witnesses and the strength of their cases.

Pleas create many issues, and another problem reported was a finding that plea bargaining promotes and exacerbates racial inequality in the criminal justice system. Similarly situated defendants of color were reported to fare worse than white defendants.

The report recommended that a single set of principles be crafted to guide plea bargain practices in general. The report also presumed the good faith of prosecutors and others in the system, and did not suggest these people should not be prevented from exercising their vision of justice. Nevertheless, the report suggested 14 principles that could be adopted to give parameters to judges, lawyers and legislators.

The 14 principles are too long to list or explain here, but the essence of the specific recommendations is embodied in the 14th principle, which calls for “robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity… and to promote transparency, accountability, justice and legitimacy….” The full list can be found here.

The report, prepared by a broad cross section of task force members that included the defense bar, public defenders and the Department of Justice, offers broad suggestions; it does not propose specific reform.

We would like to see those involved in the criminal justice system read and discuss the findings and principles set forth in the report. The process will not be quick or easy, but the goal should be adoption of a formal process to implement some or all of the principles set forth in the report, whether by change of law or rulemaking.

While the rights of individual defendants are very important, there is more at stake here. According to the report, juries are one of the last ways citizens can affect how prosecutors enforce laws. That right is lost in a system where only 2% of criminal cases go to trial.

Editorial Advisory Board members Arthur F. Fergenson and Leigh Goodmark did not participate in this opinion.

Editorial Advisory Board member Arthur F. Fergenson did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Julie C. Janofsky

Ericka N. King

Susan F. Martielli

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.