Fourteen Principles and a Path Forward for Plea Bargaining Reform

• Pages: 24-29
• Date: 01 January 2024
• Author: Lucian E. Dervan
• Subject Matter: Derecho Público y Administrativo

24

CRIMINAL JUSTICE | WINTER 2024

BY LUCIAN E. DERVAN

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 ap-

propriate and did not infringe defendants’ constitu-

tional rights, particularly the right to trial found in the

Sixth Amendment.

LUCIAN E. DERVAN is Professor of Law and Director of

Criminal Justice Studies, Belmont University College of

Law, in Nashville, Tennessee; Founding Director of the

Plea Bargaining Institute; Co-chair of the ABA CJS Plea

Bargaining Task Force; and co-author of the forthcoming

book The Cost of Bargains: Reections and Recommendations

from the ABA CJS Plea Bargaining Task Force.

FOURTEEN

PRINCIPLES

and a path forward for

PLEA BARGAINING

REFORM

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 incen-

tives, 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.

Published in Criminal Justice, Volume 38, Number 4, Winter 2023. © 2023 by

the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in

any form or by any means or stored in an electronic database orretrieval system

without the express written consent of the American Bar Association.