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April 07, 2023 National Conference of Specialized Court Judges

Should Judges Be More Involved With Plea Bargains?

By Hon. Richard Ginkowski, Pleasant Prairie, WI

As concerns have been voiced that jury trials are moving in the direction of extinction, an ABA task force was formed to call for greater transparency, fairness and scrutiny of plea bargains and, in the process, implies that greater judicial oversight may be needed. The three-year project of the ABA Criminal Justice Section’s Plea Bargain Task Force led to a recently released report.  The task force found that almost all criminal prosecutions in the United States are resolved by inculpatory pleas, this practice often results in injustice.

For example, the report – which is not ABA policy – suggests many innocent defendants fail to pursue or abandon defenses to avoid mandatory sentencing laws or harsh collateral consequences, such as deportation. The authors lament that prosecutors may exploit these fears to avoid jury trials. They also point out widespread plea bargaining can mean police and government misconduct goes unchecked. The report doesn’t stop at critiquing the “vanishing jury trial,” but also notes that encouraging pleas at the expense of critical pretrial litigation conceals the purported abuses. The authors express concern that contemporary plea bargaining facilitates racial inequities in the criminal justice system.

The report identifies 14 “principles” that are distilled below to ten key concepts:

  1. Innocent people sometimes plead out to crimes they didn't commit. (Should judges be more thorough and proactive in ensuring there is a factual basis for the plea?)
  2. The use of pretrial detention and bail as a means of coercing guilty or no contest pleas should be eliminated.
  3. Defendants have a right to counsel and, as such, defense attorneys should have adequate time to investigate whether to recommend a guilty or no contest plea of going to trial.
  4. Defendants (or their attorneys) should receive all available discovery, including exculpatory materials, prior to entering a guilty or no contest plea and should be given adequate time to review discovery. (Is this always practical or necessary?)
  5. There are rights defendants should not be required to waive when making a negotiated guilty or no contest plea.
  6. Defendants, before entering a guilty or contest plea, should have adequate understanding of potential collateral consequences. (Does this impose additional burdens on trial judges?)
  7. Although some variance in sentences for defendants who plead guilty or contest vs. those convicted as a result of trial is permissible, courts should not impose a "trial tax" on defendants exercising their right to trial. (What about the situation where at trial additional inculpatory or aggravating facts become known?)
  8. There should be more transparency in the plea-bargaining process.
  9. Law students, lawyers and judges should have appropriate training in the use and practice of plea bargaining. (Should this include negotiation skills training for law students and attorneys?)
  10. Data collection is necessary to evaluate and monitor the plea process and may be used to assess and monitor racial and other potential biases. (How might this be possible vis-s-vis an apples-to-apples comparison given the myriad of factors in each case which may or may not be able to be objectively quantified?)

Although the degree varies by jurisdiction, judicial involvement in plea bargains historically has been limited, respecting separation of powers as prosecution is an executive function. My jurisdiction, Wisconsin, tilts heavily toward prosecutorial independence at the charging stage but, once a prosecution has been initiated, judges have some oversight to ensure that amendment or dismissal of a charge is in the public interest. (I’ve rejected “deals” where I felt that the disposition was not in the public interest, including doubts as to a defendant’s guilt.)

The task force’s call for greater transparency in plea bargaining does not suggest that judges be part of “back room” discussions but perhaps engage in more oversight to ensure fairness in the process. Its recommendations may require alteration of statutes and court rules. And there are practical considerations such as how much can the “assembly line” be slowed down without impeding the efficacy of resolving cases by negotiated pleas. While not ABA policy, having these recommendations in the public domain indicates that judges should “stay tuned for further developments.”

Hon. Richard Ginkowski

Executive Committee Member, National Conference of Specialized Court Judges

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