Whereas, NACDL has been a leading voice advocating for reform of plea bargaining in the criminal legal system, particularly the reduction and ultimate elimination of the trial penalty and coercive plea bargaining;
Whereas, the trial penalty and coercion in the plea system have myriad harmful impacts on our legal system and society, including, but not limited to, the coercion of innocent people into pleading guilty, the waiver of numerous constitutional rights, the increased use of discretionary coercive powers by prosecutors; the covering up of unlawful law enforcement practices; the loss of citizen participation and oversight in the criminal legal system; and the atrophying of trial and advocacy skills;
Whereas, NACDL’s research and policy reports on the trial penalty, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It and The New York State Trial Penalty: The Constitutional Right to Trial Under Attack, contained principles and specific recommendations for reform of the trial penalty;
Whereas, the Plea Bargain Task Force{1} 1 ABA CJS Plea Bargaining Task Force, https://www.americanbar.org/groups/criminal_justice/committees/taskforces/plea_bargain_tf/. was created by the Criminal Justice Section of the American Bar Association to examine the role of plea bargaining in the criminal legal system;
Whereas, the Plea Bargain Task Force’s Report{2} 2 Plea Bargain Task Force Report, https://www.americanbar.org/content/dam/aba/publications/criminaljustice/plea-bargain-tf-report.pdf., released on February 22, 2023, contains 14 principles that are consistent with the findings, principles, and recommendations in NACDL’s trial penalty reports;
Whereas, the ABA’s House of Delegates will soon consider a resolution that would formally adopt the Plea Bargain Task Force Report’s principles as ABA policy;
Whereas, the adoption of these principles by the ABA House of Delegates would be an influential voice expressing the wider bar’s agreement with the longstanding position of the criminal defense bar that the trial penalty and coercive plea bargaining are scourges within our legal system that are in urgent need of reform;
Therefore, BE IT RESOLVED that NACDL endorses the principles contained with the 2023 Plea Bargain Task Force Report;
And, BE IT RESOLVED that NACDL urges the American Bar Association House of Delegates to formally adopt the 14 principles of the Plea Bargain Task Force Report at its 2023 Annual Meeting.
Appendix: 14 Principles in the 2023 Plea Bargain Task Force Report
Principle 1. A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system.
Principle 2. Guilty pleas should not result from the use of impermissibly coercive incentives or incentives that overbear the will of the defendant.
Principle 3. In general, while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.
Principle 4. Charges should not be selected or amended with the purpose of creating a sentencing differential, sentencing enhancement, punishment or collateral consequence to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.
Principle 5. 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.
Principle 6. A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
Principle 7. There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.
Principle 8. The use of bail or pretrial detention to induce guilty pleas should be eliminated.
Principle 9. Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
Principle 10. Although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement.
Principle 11. An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
Principle 12. Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of this Report.
Principle 13. Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
Principle 14. At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.
