Plea bargaining is criminal “justice” on the cheap. Think of an ultra-budget airline that eliminates co-pilots, foregoes maintenance, carries no fuel reserves, and omits preflight safety checks in favor of quick turnaround times. Efficient? Yes. Cheaper? Certainly. But no sane person would choose to fly that airline because of its flagrant disregard for what a century of experience with commercial aviation has taught us about the key role that extensive safety protocols play in avoiding disaster.

Another complex process that requires multiple safety protocols to avoid disaster is the adjudication of criminal charges. And, like commercial aviation, we have learned from generations of sometimes painful experience about the hazards of sacrificing process for efficiency. Except that, unlike commercial aviation, when it comes to criminal adjudication we have chosen to largely disregard those lessons in the heedless pursuit of efficiency. 

If that sounds like hyperbole, note that last year 98.3 percent of federal criminal convictions (and around 95 percent in the states) came from guilty pleas rather than constitutionally prescribed jury trials. Consider also that out of more than 2,000 documented exonerations in this country, 18 percent were the product of false guilty pleas—that is, an innocent person coerced by prosecutors into pleading guilty to a crime they did not in fact commit. Efficient? Certainly. Cheap? Very much so. And utterly indifferent to the myriad risks that come with jettisoning carefully crafted constitutional safeguards, including not just false convictions, but also obscuring untold quantities police misconduct that never comes to light during a public trial, severing the vital constitutional connection between ordinary citizens and the administration of criminal justice, and facilitating mass incarceration by enabling the government to pursue marginal cases that it would decline if it had to incur the expense and inconvenience of a jury trial.

Into this constitutional crisis steps the American Bar Association with its 2023 Plea Bargain Task Force Report that was released today. Convened in 2019, the Plea Bargain Task Force (of which I am a member) was charged with developing a set of principles to identify and address some of plea bargaining’s worst pathologies. Among the most important of the Report’s 14 Principles include the following:

  • Recognizing the value of and making a real effort to ensure the existence of “[a] vibrant and active docket of criminal trials…to promote transparency, accountability, justice, and legitimacy” in the system;
  • The prohibition of “impermissibly coercive” pressures to induce guilty pleas;
  • “Robust and transparent procedures,” including pre-plea discovery, to help “ensure that the defendant’s plea is knowing and voluntary; and
  • Careful data collection to better assess and monitor various biases in the plea process, including racial biases.

The ABA report is a good start, but it is only that—a start. Further principles and reforms that Cato scholars have urged and have been working to implement include:

  • Educating citizens about the true and historical function of criminal jurors in our system, which goes far beyond the narrow fact-finding role carved out for them today and focuses instead on preventing injustice, limiting government, and curbing abuses of power; 
  • Creating a system of trial lotteries to audit the plea-bargaining process and help us develop robust empirical data about how often prosecutors are able to induce guilty pleas where they would not have been able to secure a conviction at trial due to factual innocence, a failure of proof, governmental misconduct, or some other fatal defect in the case; and
  • Establishing plea integrity units charged with kicking the tires on proposed plea agreements before they are accepted in order to smoke out potentially problematic tactics such as overcharging; improper use of pretrial detention, mandatory minimums, or other trial penalties to induce cooperation; and demanding inappropriate waivers from the defendant (listed in Principle Ten of the ABA Report) such as ineffective assistance of counsel, compassionate release, sentencing errors, and the right to file Freedom of Information Act Requests about their own case.

Plea bargaining arose spontaneously over a period of decades behind closed doors in the dark corners of the criminal justice system. Today’s ABA report represents a beam of disinfecting light, and one by which the task of cleaning out the Augean Stables of modern American plea bargaining may hopefully commence in earnest.