News Release

New Plea Bargain Task Force Report Highlights the Trial Penalty, Calls for Transparency

Washington, DC (Feb. 22, 2023) – NACDL applauds the release of a new report from the Plea Bargaining Task Force, a group convened by the Criminal Justice Section of the American Bar Association.* The task force closely examines the role of plea bargaining in our criminal legal system and provides policy recommendations and goals for changes in the way plea bargaining operates. NACDL’s former Executive Director, Norman Reimer, served as a member of the task force alongside prosecutors, defense lawyers, judges, academics, and members of various think tanks and advocacy organizations, including members affiliated with the Innocence Project, Southern Poverty Law Center, Council on Criminal Justice, Fair Trials, and the Cato Institute. The Task Force was co-chaired by Lucian Dervan, Professor of Law, Belmont University College of Law and Founding Director of the Plea Bargaining Institute; and Russell Covey, Professor of Law, Georgia State University College of Law. 

The report explains that the current system of plea bargaining is too focused on efficiency and cost-savings and lacks transparency and fairness, noting: “the integrity of the criminal system is negatively affected by the sheer number of cases resolved by pleas. Police and government misconduct often goes unchecked because so few defendants proceed to pretrial hearings where such misconduct is litigated.” Today, more than 97% of criminal convictions are the result of guilty pleas because our legal system routinely and systematically coerces individuals to plead guilty by threatening much more severe prison sentences if they choose to take their cases to trial. This type of coercive plea bargaining is examined in the report and fuels what NACDL has long referred to as the trial penalty. 

The task force recommends several major steps that legislatures, lawyers, judges, and court administrators can take to bring back fairness and transparency to the plea bargaining system and uphold the constitutional right to trial. 

The 14 guiding principles of the report include: 

  • Guilty pleas should not result from the use of impermissibly coercive incentives that force a defendant to plead guilty rather than pursue their right to a trial. 
  • Charges should not be selected or amended to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial. 
  • 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 and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.


NACDL President Nellie King stated: 

“NACDL applauds the release of this incredibly important report. The trial penalty and widespread use of coercive plea bargaining has virtually eliminated the constitutional right to trial and removed transparency from the criminal process. In addition to the vast unchecked power our plea bargaining system gives to prosecutors, the trial penalty drives innocent people to plead guilty, shields law enforcement misconduct, fuels mass incarceration, and disproportionately impacts communities of color. The guiding principles put forth in this report provide judges, attorneys, and legislators with the tools to address the trial penalty and bring transparency back to the plea bargain system. NACDL looks forward to continuing its work with the task force members and putting these principles into action in order to end the trial penalty.” 

NACDL Past President and Co-Chair of NACDL’s Trial Penalty Task Force MartĂ­n Sabelli stated: 

“In 2018, NACDL placed coercive plea bargaining front and center on the national reform agenda by publishing The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It. The Plea Bargaining Task Force Report confirms NACDL’s analysis and reflects the evolving consensus – across the ideological spectrum – that coercive plea bargaining has not only caused innocent people to plead guilty but has also fatally undermined the system of public jury trials envisioned by the Framers as both the principal means of protecting individual liberty and as the principal check on police and prosecutorial abuse. Thanks to coercive plea-bargaining – aka the trial penalty – we now have an assembly line of guilty pleas rather than a system of public trials in which citizen jurors ensure that each and every accused receives a fair trial before being deprived of liberty. NACDL and the task force stand shoulder to shoulder in calling for the restoration of the constitutional balance between prosecutors and the accused.” 

Read the report

* The views expressed in the report represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the association or any of its entities. 

Contacts

Kate Holden, NACDL Public Affairs and Communications Associate, (202) 465-7624 or kholden@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.

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