Reinstatement on the Practice of Plea Negotiations.

• Author: Ring, William P.

Plea negotiation in criminal proceedings is an established part of American jurisprudence. The historical origins of the practice are well documented. (1) Plea negotiation practices are easily recognizable, and typically involve leniency and programmatic treatments for the Defendant in return for an admission of liability and, when indicated, restitution for the victims. Plea negotiations are neither illegal nor immoral. Nonetheless, both the process and the result of plea negotiations have been the subject of continuous debate. The academic community, for example, has taken aim at plea negotiations steadily, (2) as have ad hoc commissions (3) and the Criminal Justice Section of the American Bar Association. (4)

In 1973 the National Advisory Commission on Criminal Justice Standards and Goals 'totally condemned (sic)' plea negotiation and recommended abolishing the practice by 1978. (5) The practice endured. In 2019 the ABA Criminal Justice Section convened a Plea Bargain Task Force to address persistent criticisms of the plea bargain system in the United States. The Task Force issued a 2023 Report consistent with those criticisms. (6) Chiet among those statements is Principle One, emphasizing the jury trial as an essential means to promote transparency, accountability, justice, and legitimacy in the criminal justice system. (7)

The Report is critical of the death of the jury trial and the death of pretrial litigation. Nonetheless, the Report stops short of abolishing the plea negotiation practice. Instead, every jurisdiction should consider whether a sufficient number of trials are being conducted to ensure community participation and oversight through jury service; and maintenance of prosecutor and defense attorney skills (as well as judges and law enforcement officers); to the end that the right to jury trial be preserved and criminal cases resolved in a way that is fair, consistent and reflective of justice. (9)

The Report underestimates the impact that delay has on victims, the accused, and the state.The inability to address the accused by means of trial is common, and frequently referred to as docket backlogs and bottlenecks. As delays extend the administration of justice, prosecution loses its deterrent effect. Victims lose confidence in the justice system. And community confidence in the justice system, as a means of dispute resolution, erodes. Additionally, unnecessary litigation of facts and law where the proof is substantially complete and persuasive ignores the reasonable need to provide for an efficient and fair administration of all cases. Delay is particularly impactful to: (a) those criminal cases that do require litigation to resolve the weight and sufficiency of the evidence; and (b) most of the civil cases in a justice system that yield their priority to the criminal docket. Given the steady criticism of a beneficial practice that resolves criminal cases, it is imperative that the National District Attorneys Association restate the primacy of plea negotiations in the American criminal justice system.

1. What is a Plea Agreement?

   The plea agreement is a discretionary mechanism where the charging authority holds the accused accountable, through the criminal justice system, while also providing the accused the opportunity to avoid criminal and non-criminal (collateral) consequences for misconduct. Through the exercise of discretion by the State's Attorney, in a negotiation mediated by defense counsel as attorney for the client, a fair and just result is sought for victims, the accused, and the People on whose behalf the State's Attorney acts. The plea agreement provides a vehicle for the State to demonstrate a measure of temperance and compassion for the circumstances at hand while addressing the Community's sense that justice and fairness be done and be seen to be done. The resolution of cases is reduced to an agreement, entered of record in a court of law, in public session, through documents that are publically reviewable. When justice is seen to be done m a timely way it restores the Community's sense of confidence in society's ability to fairly resolve often difficult and painful disputes.

2. The prevalence of the Plea Agreement

   In 2005 the National Center for State Courts reports that the vast majority of felony case filings (among reporting state court jurisdictions) are cleared by plea agreement. (10) The median trial rate of all cases dropped from 4.4 percent in 1994 to just over 3 percent in 2003. (11) This figure is inclusive of both bench and jury trials. (12) In another source that is frequently cited, ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. (13) The negotiation of the plea agreement is almost always the critical moment for the defendant. (14)

3. The benefits of a Plea Agreement

   A frequently overlooked point in the discussion surrounding plea agreements is that, once the accused is justly charged, the material tacts leading to criminal liability are not often in substantial dispute. If there is a dispute of some consequence about the amount, the weight, and the sufficiency of admissible evidence then the...