Plea bargaining accounts for almost 98 percent of federal convictions and 95 percent of state convictions in the United States. So prevalent is the American plea-bargaining system that the US Supreme Court wrote in 2012 that ours “is for the most part a system of pleas, not a system of trials.” Missouri v. Frye, 566 U.S. 134, 143–44 (2012). But this has not always been the case. The American system, it turns out, began as a system of trials, much like that found in the English common law that served as its predecessor. Gradually, however, the concept of plea bargaining took root in the United States and grew in the shadows until, by the latter half of the 20th century, it had come to dominate.
As might be expected from a system that grew in the shadows, plea bargaining evolved without much oversight, regulation, or monitorship by the bar, the courts, or the legislatures. As a result, plea bargaining evolved in different ways from one jurisdiction to another. Further, as plea bargaining gained ground, jurisdictions failed to establish guiding principles or guardrails to ensure that plea practices were appropriate and did not infringe defendants’ constitutional rights, particularly the right to trial found in the Sixth Amendment.
Recently, the American Bar Association adopted a new set of guiding principles crafted to provide an avenue to a more consistent plea-bargaining system and to establish guardrails to help ensure that plea practices are consistent with the Constitution and a thoughtful system of criminal justice. The principles, which cover a host of topics such as the use of impermissibly coercive incentives, the use of pretrial detention in plea bargaining, the provision of adequate discovery before a defendant pleads guilty, and the collection of plea-bargaining data by the courts, are the result of almost four years of work by the ABA Criminal Justice Section Plea Bargaining Task Force. This article tells the story of plea bargaining’s rise to dominance, discusses the costs of bargains, and introduces the 14 principles that are now ABA policy and that provide a path forward to a fairer, more transparent, and more just system of criminal adjudication.
The Early Rejection of Bargains
It is not surprising that many people believe plea bargaining has a deep common law history, particularly given how dominant plea bargaining is in today’s criminal justice system. But the actual history of plea bargaining reveals that this form of adjudication is a relatively modern American invention that sprang from the need to create a more efficient criminal system in the face of the over-criminalization of the early 20th century. Prior to the 20th century, in fact, courts interpreting the common law were wholly averse to the concept of bargained justice.
In the 1783 English case of Rex v. Warickshall, for example, the court examined a case in which the defendant had been offered a “promise of favor” in return for a confession. 168 Eng. Rep 234, 235 (1783). In response, the court wrote, “[A] confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape … that no credit ought to be given to it.” Id. This language reflected the importance placed by the common law in the jury trial.
In the United States, the significance of the jury was captured in the Constitution and the Bill of Rights. Of the trial’s place in the American experiment, Thomas Jefferson wrote, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” The combination of these sentiments from the American founders and the existing precedent from the British common law led inevitably to the adoption of language similar to Warickshall by the US courts. In Bram v. United States, for example, the US Supreme Court considered the appropriateness of incentives to confess. 168 U.S. 532, 584 (1987). The Court concluded that the “true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort.” Id.
Despite the strong language in opposition to bargains contained in case law from the 18th and 19th centuries, examples of plea bargaining in the trenches of the American criminal justice system can be found as early as the late 1700s in sporadic geographic locations. For example, according to Professor George Fisher, forms of plea bargaining occurred in liquor law violations in Middlesex County, Massachusetts, during the late 1700s. Professor Dan Canon’s research also identifies early examples of plea bargaining in Massachusetts and, eventually, New England in the mid-1800s.
Despite the use of early forms of plea bargaining in the trenches during this period, the courts continued to adhere to the British and American precedents and their critical view of offering incentives to plead guilty. In the late 1800s, for example, the California Supreme Court wrote, “When there is reason to believe that the plea has been entered through inadvertence … and mainly from the hope that the punishment to which the accused would otherwise be exposed may thereby be mitigated, the Court should be indulgent in permitting the plea to be withdrawn.” People v. McCrory, 41 Cal. 458, 462 (1871). Around the same time, the Wisconsin Supreme Court wrote that plea bargaining is “hardly, if at all distinguishable in principle from a direct sale of justice.” Wright v. Rindskopf, 43 Wis. 344, 353 (1877). Yet, despite these precedents, plea bargaining continued to gain a foothold in the American criminal justice system as it began its rise to dominance.
A defining moment in the rise of plea bargaining was the over-criminalization of the early 20th century, particularly once the Prohibition era arrived. During this period of American history, the number of prosecutions swelled, and courts quickly became overwhelmed. As public officials searched for an answer to this growing crisis of resources, plea bargaining, and the efficiency it might offer, became a potential solution.
In 1931, as the criminal justice system continued to strain under the weight of large dockets, President Herbert Hoover convened the Wickersham Commission to examine crime in America. The Commission’s findings included a specific discussion of the plea bargaining already occurring in the trenches and the potential that utilization of this system of adjudication might provide an answer for the whole system.
[F]ederal prosecutions under the Prohibition Act terminated in 1930 had become nearly eight times as many as the total of all pending federal prosecutions in 1914. In a number of urban districts the enforcement agencies maintain that the only practicable way of meeting this situation with the existing machinery of federal courts . . . is for the United States Attorneys to make bargains with defendants or their counsel whereby defendants plead guilty to minor offenses and escape with light penalties . . . Lawyers everywhere deplore, as one of the most serious effects of prohibition, the change in the general attitude toward the federal courts. . . . [T]he huge volume of liquor prosecutions . . . has injured their dignity, impaired their efficiency, and endangered the wholesome respect for them which once obtained.
Nat’l Comm’n on Law Observance & Enf’t, Report on the Enforcement of the Prohibition Laws of the United States 56 (1931). Although little data are available regarding the widespread growth of plea bargaining in the early 20th century, data on pleas of guilty are available. These data illustrate that between the early 20th century and 1925, the guilty plea rate in federal court rose from 50 percent to 90 percent. Lucian E. Dervan, Bargained Justice: Plea Bargaining’s Innocence Problem and the Brady Safety-Valve, 2012 Utah L. Rev. 51, 59 (2012). Much of this increase is likely attributable to the growth of plea bargaining in the shadows, as observed by the Wickersham Commission.
Despite what appears to be a growing utilization of plea bargaining in the early 20th century, the US courts continued to view such behavior with suspicion. In fact, so inconsistent was the practice of plea bargaining with prior common law precedent that on several occasions the US Supreme Court appeared on the precipice of ruling it a wholly unconstitutional practice. In 1958, for example, the Court took up the case of Shelton v. United States. 356 U.S. 26 (1958), cert. granted. The Shelton case had originated in the Fifth Circuit, where the defendant had requested his plea be set aside as involuntary and coerced. In response, the Fifth Circuit, in granting the motion, wrote:
There is no doubt, indeed it is practically conceded, that the appellant pleaded guilty in reliance on the promise of the Assistant United States Attorney that he would receive a sentence of only one year. The court, before accepting the plea, did not ascertain that it was in truth and in fact a voluntary plea not induced by such promise. It necessarily follows that the judgment of conviction must be set aside and the plea of guilty vacated.
Shelton v. United States, 242 F.2d 101, 113 (5th Cir. 1957). The Fifth Circuit also wrote, “Justice and liberty are not the subjects of bargaining and barter,” a statement strikingly similar to the words written by the Wisconsin Supreme Court in Wright in 1877. Id. The case then went to the U.S. Supreme Court but was removed by the government prior to a ruling. Some believe this was a result of the Department of Justice counting heads and determining that the Court was likely to agree with the lower court and strike down plea bargaining once and for all. See Albert W. Alschuler, Plea Bargaining and Its History, 79 Colum. L. Rev. 1, 37 (1979).
Eight years later in 1966, another case made its way to the US Supreme Court and, once again, the Court’s reluctance to embrace bargaining was on full display. The case, United States v. Jackson, 390 U.S. 570 (1968), involved a statute that contained an increased punishment for those convicted by a jury. Although not a plea bargain, the case put before the justices the issue of punishing those who proceeded to trial. In ruling the provision unconstitutional because it placed an “impermissible burden on the exercise of a constitutional right,” the Court wrote, “It is no answer . . . that federal trial judges may be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trials. For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them.” Id. at 583. The strength of this language, in combination with the various earlier precedents, would lead many to believe that plea bargaining’s days were numbered in 1968, but they would be wrong.
Brady and Modern Plea Bargaining
Just two years after Jackson, the case of Brady v. United States, 397 U.S. 742 (1970), made its way to the US Supreme Court. This case finally brought the issue of plea bargaining squarely before the justices. The defendant in Brady argued that his plea should be withdrawn because he was coerced into pleading guilty to avoid the possibility of receiving the death penalty. Rather than continue to enforce earlier precedents that prohibited pleas of guilty that resulted from the “flattery of hope” or the “torture of fear,” the Court embraced plea bargaining as a mechanism of efficiency that might free up resources for cases that did proceed to trial.
This decision is striking for its inconsistency with the earlier precedents dating back to English common law, but there are several key elements that led to this result in 1970. First, the passage of time had created an opportunity for plea bargaining to survive review. For example, since the Shelton case had been removed from consideration in 1958, five new justices had taken the oath and would decide plea bargaining’s fate. Further, by 1970, 90 percent of cases in the United States were resolved through pleas of guilty. While the exact number that involved plea bargaining is unclear, the Justices must have understood the devastation that would be wrought on the criminal justice system had they ruled the practice entirely unconstitutional.
Second, the Court believed that there was a need for a more efficient method of adjudication given that the court systems continued to be overburdened, just as the courts had been when plea bargaining grew in the trenches in the 1920s. Even the American Bar Association was adopting this line of reasoning during this period. In 1968, for example, the American Bar Association Standards Relating to Pleas of Guilty 2 (1968) said:
[A] high proportion of pleas of guilty and nolo contendere does benefit the system. Such pleas tend to limit the trial process to deciding real disputes and, consequently, to reduce the need for funds and personnel. If the number of judges, courtrooms, court personnel and counsel for prosecution and defense were to be increased substantially, the funds necessary for such increases might be diverted from elsewhere in the criminal justice process. Moreover, the limited use of the trial process for those cases in which the defendant has grounds for contesting the matter of guilty aids in preserving the meaningfulness of the presumption of innocence.
Id. In fact, the need to address the overburdened court systems was particularly pressing in 1970 as a result of the Due Process Revolution of the 1960s and the increasing lengths of trials that resulted.
While the Brady decision brought plea bargaining out of the shadows, the ruling did not lead to robust oversight, regulation, or monitorship of this mechanism of adjudication that had come to dominate. Few, if any, significant restrictions were placed on the use or methods of plea bargaining going forward, and different jurisdictions adopted the practice in inconsistent ways. While plea bargaining in the decades following Brady offered some of the benefits envisioned by the Court in 1970, such as efficiency, the piecemeal adoption of plea bargaining has also resulted in costs and the development of troubling practices.
For example, while the Court envisioned plea bargaining as a means to direct more resources towards the remaining trials, plea bargaining has actually contributed to the disappearance of the trial itself. By 2022, only 2.5 percent of convictions at the federal level were the result of trials. In some jurisdictions, years have gone by without a single criminal trial taking place.
Another troubling aspect of plea bargaining is the presence of significant sentencing differentials, which are the differences between the sentence someone receives for pleading guilty versus the sentence they receive in return for utilizing their constitutional right to trial. In a 2019 piece on federal sentencing, the author found that those convicted at trial had a two to six times greater likelihood of incarceration and the sentencing lengths were 20 to 60 percent longer. See Brian Johnson, Plea-Trial Differences in Federal Punishment, 31 Fed. Sent’g Rep. 256 (2019). Similarly, a Vera Institute Report from 2020 entitled In the Shadows noted that the odds of incarceration were 2.7 times greater for those who went to trial and the sentences were 57 percent longer. See Ram Subramanain et al, Vera Inst. of Just., In the Shadows: A Review of the Research on Plea Bargaining (Sept. 2020).
The types of sentencing differentials described above also impact defendant decision-making and have led to the phenomenon of false pleas of guilty by the innocent. By the end of 2022, the National Registry of Exonerations had 3,284 exonerations within its dataset, and 25 percent of those involved a false plea of guilty. Of the entire dataset, more than 40 percent are “no-crime exonerations,” which are exonerations where the exoneree was convicted of a crime that never actually occurred. In this category, a startling 48 percent of the cases involved false pleas of guilty by the innocent. See Nat’l Registry of Exonerations, 2022 Annual Report, at 11 (May 8, 2023).
Modern plea practice has also seen the use of impermissibly coercive incentives to induce defendants to plead guilty beyond the sentence in the case. For example, prosecutors have used threats to indict children, spouses, or other family members to induce pleas of guilty, including in cases where the pleas served to cover up pervasive law enforcement misconduct that would have been revealed at trial. United States v. Seng Cheng Yong, 926 F.3d 582 (9th Cir. 2019). In other examples, modern plea practices have included the use of the power of plea bargaining to force defendants to accept inappropriate conditions as part of the deal. In Tennessee, for example, a prosecutor only offered favorable pleas to women in certain abuse and neglect cases if they agreed to forced sterilization. See ABA CJS, 2023 Plea Bargain Task Force Report (Feb. 22, 2023).
Finally, another example of the impact of an unregulated and unguided system of pleas is that plea bargaining exacerbates existing racial inequality in the criminal justice system. For example, Black defendants in drug cases are less likely to receive favorable plea offers that avoid mandatory minimum sentences. The same was found in gun cases, where Black defendants are more often subjected to charge stacking than white defendants. Further, white defendants who face initial felony charges are less likely than Black defendants to be convicted of a felony, and white defendants facing misdemeanor charges are more likely than Black defendants to have the cases dismissed or resolved without incarceration. See id.
Though this is a nonexhaustive list of some of the costs of bargains and troubling practices that have developed, these examples serve to demonstrate the need for better guidance regarding how our system of pleas should operate and what our expectations should be for our system of criminal justice.
The Fourteen Principles
In 2019, in response to such concerns about the plea bargaining system, the American Bar Association Criminal Justice Section created a Plea Bargain Task Force. The Task Force included representatives from various corners of the criminal justice system—the prosecution, defense, judiciary, academy, various politically diverse advocacy groups, and the state and federal systems. The charge to the Task Force was to consider how plea bargaining has developed over time and what advantages and challenges have resulted. The Task Force was also tasked with considering the best path forward and potential solutions to the challenges identified by the group.
During its duration, the task force regularly met to discuss the state of plea bargaining in America and collected and reviewed testimony from experts in the field and those impacted by the plea system, scholarly and legal reports on plea bargaining, state and federal rules of criminal procedure, and other materials. After several years of work, the members of the Task Force jointly created and unanimously endorsed 14 principles. In releasing the principles, the Task Force also released a fulsome Report discussing the principles, which is available on the Criminal Justice Section’s website. See id.
In the press release for the report launch, the American Bar Association noted:
The task force recommended several major steps that legislatures, lawyers, judges and court administrators can take to create a more fair and transparent plea bargaining system. “While the plea-bargaining process in the United States is broad and varied, the task force determined that it was vitally important to craft a single set of principles to guide plea practices generally,” the report found. “These principles represent our conclusions about how plea bargaining should operate within our larger criminal justice system, a system based on the fundamental constitutional right to trial.”
Below are the 14 principles unanimously adopted by the Task Force and which the group determined represented a path forward to a fairer, more transparent, and more just criminal system.
Fourteen Principles from 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 [the 2023 ABA Criminal Justice Section Plea Bargain Task Force] 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.
As seen above, the 14 Principles begin in Principle One with a reiteration of the importance of an active docket of criminal trials and the many benefits that emanate from the oversight and accountability trials can provide. The principles then offer several foundational concepts to guide the use of plea bargaining, including making note of the need to prohibit impermissibly coercive incentives. As the Supreme Court stated in 1970 in Brady v. United States, plea bargaining cannot result from “mental coercion overbearing the will of the defendant.” Reiterating this important limitation on bargains and ensuring pleas of guilty are voluntary are vital to a healthy criminal justice system. To assist in preventing the use of impermissibly coercive incentives, the principles then discuss several guidelines, including limiting the size of sentencing differentials, advising that charges should not be selected or amended to create a sentencing differential with the purpose of inducing the defendant to plead guilty, and prohibiting the use of pretrial detention as a tool to extract guilty pleas. These principles seek to establish policies and procedures that prevent defendants from being punished simply for exercising their constitutional right to trial.
In Principle Five, the guidelines discuss the importance of acknowledging that people plead guilty for various reasons, including innocent people. This is a fundamental principle recognizing that the powerful incentives present in the plea-bargaining system can lead to false pleas by the innocent, a phenomenon that not only results in an unjust conviction, but that also places the community at risk because the actual perpetrator may unknowingly remain at large to offend again.
The principles next consider the procedural aspects of plea bargaining and plea hearings. To further the goal of ensuring pleas are voluntary, the principles advocate for robust and transparent procedures and for access to qualified counsel. Similarly, the principles address the need for discovery and an adequate understanding of the applicable collateral consequences to ensure defendants are making informed decisions. As part of this discussion, the principles also examine the waivers contained in plea-bargaining agreements and, while acknowledging that some waivers are appropriate, conclude that there are certain rights for which waivers should not be sought as part of the plea-bargaining process.
Finally, the principles end with a discussion regarding mechanisms to improve the functioning and monitoring of the plea system. These principles include encouraging more training from law school onward regarding the manner in which plea bargaining dominates our criminal justice system and the issues and recommendations from the principles and accompanying report. The principles also encourage more data collection to assist actors both within and outside the system in understanding the operation of plea bargaining and to assist in identifying areas where further inquiry would be helpful. The principles conclude by calling for more oversight of the plea-bargaining system. This will serve to both monitor the system and assist in identifying further areas in need of examination and inquiry.
In totality, the 14 Principles seek to operate together to create a path forward towards a fairer, more transparent, and more just system. In August 2023, the 14 Principles were presented to the American Bar Association House of Delegates in Resolution 502 and were overwhelmingly adopted as the official policy of the association.
Plea bargaining began as an American experiment in efficiency and eventually came to dominate the system it was created to assist. And while plea bargaining offers many benefits when utilized appropriately, the risks and costs of an unregulated, unmonitored, and unguided plea system are significant. Fortunately, the American Bar Association has taken steps to both create and adopt 14 principles that can serve as a guide going forward to address many of these issues. While there is still much work to be done, these 14 principles start us on the journey of creating the plea system we would have created had plea bargaining grown in the light, rather than risen in the shadows.