In any given year, 98% of criminal cases in the federal courts end with a plea bargain — a practice that prizes efficiency over fairness and innocence, according to a new report from the American Bar Association.
A task force that includes prosecutors, judges, defense attorneys and academics cited “substantial evidence” that innocent people are coerced into guilty pleas because of the power prosecutors hold over them, including the prospect of decades-long mandatory minimum sentences.
“Trials have become rare legal artifacts in most U.S. jurisdictions, and even nonexistent in others,” the ABA Plea Bargain Task Force wrote in a report released Wednesday.
Aside from the paltry number of trials in the federal system, states including Pennsylvania, Texas and New York have trial rates of less than 3%. In Santa Cruz County, Ariz., there were no trials from 2010 to 2012, the report said.
The prevalence of plea bargaining exploded in the last several decades as a way to save money and time and to promote more certainty in outcomes. But the practice comes with “a very high cost,” said Lucian Dervan, a professor at Belmont University College of Law in Nashville.
Pleas can allow police and government misconduct to go unchecked, because mistakes and misbehavior often only emerge after defense attorneys gain access to witness interviews and other materials, with which they can test the strength of a government case before trial.
The deals also exacerbate racial inequality, with Black defendants more often subject to prosecutors’ stacking of multiple charges in drug and gun cases. Altogether, defendants face stiffer punishments for going to trial — known as a trial penalty — that can add seven to nine years or more to their sentence.
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But most stark in the report is research that cites innocent defendants who agree to falsely plead guilty, sometimes on the advice of their own lawyers. An Innocence Project database of exonerations includes dozens of people who falsely pleaded guilty.
“This isn’t just having an effect on those individuals,” said Dervan, who co-chaired the task force. “It’s having an effect on the entire community and the safety of the entire community.”
Overhauling the justice system will be no easy task — since it could require changes to laws and ethics rules in many U.S. states. “It’s past time to start that work,” said Dervan, who recently created the Plea Bargaining Institute to generate and share research.
The ABA task force makes 14 recommendations, including the need to collect and analyze data on plea bargains; the need to give defendants access to discovery materials before they enter a plea; and the need to eliminate bail requirements or pretrial detention when they’re used to coerce someone into pleading guilty.
The report also presses prosecutors and judges not to demand or accept plea deals where defendants waive essential legal rights, such as the right to appeal and receive exculpatory information; and the right to make future claims for release for reasons of terminal illness.