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Opinion: Plea Bargaining Is Broken; We Can Fix It

When Carolyn Jean Hamm was found hanged in her basement in Arlington, Va., police suspected a “strange” young man seen in the area named David Vasquez. Prosecutors, aware of significant weaknesses in the case, offered him a deal. If he entered an Alford plea, which allowed him to claim innocence in open court while pleading guilty to rape and murder, prosecutors would take the death penalty off the table.

After conferring with his counsel, Vasquez accepted the deal. But then, another woman was raped and murdered in the same neighborhood. And that wasn’t all. In total, three women were killed similarly to Hamm after Vasquez’s incarceration.

Prosecutors eventually learned the plea offer they had made to guarantee a conviction in a weak case had actually coerced an innocent man to falsely plead guilty. Moreover, that coercive bargain had allowed a serial killer to kill again. In total, 13 women were attacked by the man who became known as the “Southside Strangler.”

More than 98 percent of convictions in the United States come from guilty pleas. The Vasquez case is an example of what plea bargaining and, therefore, the criminal justice process looks like for real people. Although it may be an extreme example, it is not an outlier.

The reality is that plea bargaining is broken. It can be fixed.

The Plea Bargain Task Force, a group convened by the American Bar Association’s Criminal Justice Section, has studied the problem for four years. It is a bipartisan group of prosecutors, defense attorneys, judges, academics and members of various think tanks and advocacy organizations. It was launched to study how plea bargaining works today and find collaborative solutions.

In a new report, the task force proposes several major steps that we think can be taken by legislatures, lawyers, judges and court administrators to create a fairer and more transparent plea bargaining system. Getting to a better plea system means getting to a better criminal justice system. As the Supreme Court rightly noted in 2012, “Plea bargaining … is not some adjunct to the criminal system. It is the criminal system.”

To be clear, plea bargaining provides many benefits. Pleas help preserve scarce judicial resources, encourage defendants to cooperate with government investigations and accept responsibility for their actions. A plea provides finality, which is good for defendants, communities and victims. In moderation, these benefits make sense and should be encouraged.

But we don’t do plea bargaining in moderation anymore. In the 1960s, the trial rate was four times higher than it is today. Strikingly, more cases were proceeding to trial where a citizen jury could test the credibility of witnesses and the strength of the prosecutor’s case and where misconduct by police or other government actors could be discovered. A higher trial rate also meant that appellate courts regularly had timely and important issues to decide that would create precedential guidance for lawyers and courts.

The current trial rate in most of the country for felonies, however, hovers around 2 percent. In today’s courtrooms, defendants rarely opt for a trial; instead, they plead guilty in exchange for some benefit. These “deals” are often so lopsided that even innocent people like Vasquez will plead guilty.

We need more trials to promote accountability for defendants, victims and the public. We also need fairer and more transparent plea agreements for those defendants who do decide to plead guilty. Our recommendations will help achieve both goals.

For instance, we recommend that prosecutors never threaten to increase the charges or sentence for a defendant like Vasquez to force the case to resolution without a trial. Nor should they threaten family members to induce a plea. We also conclude that guilty pleas should not result from using impermissibly coercive incentives.

We also recommend adopting more transparent plea procedures and collecting more data, including a more detailed record of each case that charts the plea offers and reasons for those offers. Data collection is especially important to monitor and combat the rampant racial bias that the task force discovered in its investigation of the plea system.

We believe that our report contains a roadmap forward, one created through collaboration with actors from across the criminal justice system. What is needed now is the strength to act on these recommendations and begin reinventing plea bargaining and, in doing so, reinventing our criminal justice system as a whole.

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