AuthorTurner, Jenia I.

INTRODUCTION 974 I. LACK OF TRANSPARENCY IN PLEA BARGAINING 978 II. CONSTITUTIONAL COMMITMENT TO PUBLIC CRIMINAL PROCEEDINGS 982 III. REASONS FOR NONTRANSPARENCY 987 A. Encouraging Candor in Negotiations 988 B. Protecting Prosecutorial Discretion 989 C. Shielding Cooperators from Harm 991 D. Conserving Criminal Justice Resources 992 IV. THE COSTS OF NONTRANSPARENCY 992 A. Concealing Disparate Treatment of Similarly Situated Defendants 993 B. Hiding Ineffective Assistance of Counsel During Plea Bargaining 993 C. Disguising the Trial Penalty 994 D. Concealing the True Facts 995 E. Undermining Victims' Ability to Provide Input 997 F. Frustrating Criminal Justice Reform Efforts 998 V. TRANSPARENCY PROPOSALS 1000 A. The Multiple Dimensions of Transparency 1000 B. Requiring That Plea Agreements Be in Writing and on the Record 1002 C. Placing Plea Offers on the Record 1006 D. Creating Searchable Plea Databases 1009 E. Strengthening Judicial Review of Plea Bargains on the Record 1016 CONCLUSION 1022 INTRODUCTION

For several decades, plea bargaining has been the dominant method of resolving cases in U.S. criminal courts. Today, over ninety-five percent of convictions at the state and federal levels are the product of guilty pleas. (1) As the Supreme Court has acknowledged, "[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system." (2)

Yet despite its prevalence, plea bargaining remains controversial. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants. (3)

Another feature of plea bargaining-its lack of transparency-has received less attention, but is also troubling. (4) Unlike the trials it replaces, plea bargaining occurs privately and off the record. (5) Victims and the public are excluded from the negotiations, and even the defendant is typically absent. Plea offers are often not documented, and the final plea agreements are not always in writing or placed on record with the court. (6) Plea hearings-at which a judge reviews the validity of a defendant's guilty plea-are public, but they tend to be brisk, rote affairs that often fail to reveal all of the concessions exchanged between the parties. (7) As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

The opacity of plea bargaining stands in marked contrast to the constitutional commitment to public criminal proceedings, enshrined in the Sixth Amendment right to a public trial and the First Amendment right of public access to the courts. (8) Courts have uniformly held that these rights extend to arraignments, plea hearings, and sentencing hearings. (9) But plea negotiations and plea offers have been shielded from such access, without sufficient analysis of the justification for secrecy.

To be sure, there are valid reasons for protecting aspects of plea negotiations from public scrutiny. Confidentiality fosters candor in negotiations and encourages prosecutors to use their discretion to provide leniency in appropriate cases. (10) It also helps shield cooperating defendants from retaliation. (11) Finally, the informality and lack of documentation of plea offers may help conserve resources and expedite case processing. (12)

Yet the secrecy of the process also raises a number of concerns. First, it prevents adequate oversight of a procedure that has been broadly criticized as enabling coercion, concealment of facts, and disparate treatment. Non-transparency makes it more difficult for defense attorneys to assess the reasonableness of plea offers they receive and to provide fully informed advice to their clients. It can give rise to unnecessary disputes after the fact about the terms of the bargain and the quality of assistance provided by defense counsel. The lack of transparency also frustrates the ability of victims to provide meaningful input, and it leaves judges with few guideposts by which to evaluate the fairness of plea bargains and the validity of guilty pleas. More broadly, it limits the public's understanding of plea bargaining and inhibits informed public debate about criminal justice reform.

Given the significant costs of secrecy, it is time to revisit the issue. This Article reviews U.S. plea-bargaining laws and practices and argues that courts and legislatures across the country can and should do more to enhance the documentation and transparency of plea bargaining. There are four areas in which transparency can be improved without imposing significant costs.

First, states across the country can adopt rules requiring that plea agreements be in writing and placed on record with the court. Many states and the federal system already do so, and the requirement has not proven burdensome. Concerns about the safety of cooperators have been addressed by sealing portions of the plea records that relate to cooperation. (13) The recording requirement helps reduce disputes about the terms of plea agreements, and it promotes fairness by ensuring that defendants understand the consequences of pleading guilty. By making plea agreements a matter of public-record, it also better aligns with our constitutional commitment to open criminal proceedings.

Second, lawmakers can adopt rules requiring that plea offers be placed on record with the court whenever a defendant rejects the offer and the case is set for trial. Some courts have already used this recording practice to ensure that defense counsel has conveyed a plea offer to her client and to reduce disputes about counsel's assistance in the process. (14) The practice has proven workable and has been generally well received by the participants. Because plea offers that are placed on file with the court become public records, this rule also advances the constitutional commitment to open criminal proceedings. It exposes plea bargaining to additional scrutiny and gives the public a better understanding of the penalties imposed on defendants who reject plea offers and exercise the right to trial. Such knowledge can help inform criminal justice debates and proposals for reform.

A third way to enhance transparency in plea bargaining is to require the recording of plea offers, charging decisions, sentencing outcomes, and other key facts about a criminal case in digital databases that are searchable and available to prosecutors, defense attorneys, and judges. The adoption of such databases would help promote fairness and equal treatment of defendants by educating lawyers and judges about plea precedents and facilitating a more informed analysis of plea offers. (15) Widely available and cost-effective case management software makes such digital documentation practical, and the growing support for better data collection in the criminal process makes it politically viable. (16)

Finally, states and the federal system should encourage more probing judicial review of plea agreements and require that any plea discussions that involve the court occur on the record. (17) By strengthening judicial oversight of plea bargains and exposing key aspects of the plea negotiations to the public, these reforms would help improve oversight of coercive practices, disparate treatment, and untruthful plea bargains. While more active judicial intervention is likely to consume some additional time, states that have introduced this practice have found it workable. (18) Placing judicial participation on the record may add minor logistical burdens, but would reduce the risk of judicial coercion and increase public confidence in the process.

In brief, there are various ways to improve transparency in plea bargaining that would enhance the fairness and legitimacy of the process without imposing undue burdens on the criminal justice system. In a time when most criminal cases are resolved through plea bargains, we need to bring the process out of the shadows and reaffirm our longstanding commitment to open criminal proceedings.


    Although plea bargaining is the standard method by which criminal cases are resolved today, its operation remains informal and obscure. Any negotiations between the parties remain off the record and closed to the public. (19) Neither the victim nor the defendant is typically present during the negotiations, (20) and the judge is usually not privy to them either. (21) In most jurisdictions, judges are expressly prohibited from participating in negotiations out of concern that their involvement might be too coercive and might prejudice them in the event the negotiations fall apart and the case proceeds to trial. (22)

    Typically, plea offers are not publicly announced or placed on the record. They are often not even reduced to writing, but are instead conveyed informally-over the phone, in the courtroom corridor, or in the prosecutor's office. (23) Even when written down, they are rarely entered into a database that could be searched to compare results. (24) Instead, any records of plea offers typically remain in the prosecutor's paper file (which is closed to outsiders), or in an email shared only with the defense attorney working on the case. (25) Recording remains haphazard and highly variable from prosecutor to prosecutor and from office to office. (26)

    If an offer is accepted, the resulting plea agreement is more likely to be written down and filed with the court. Yet even this custom is not uniform across jurisdictions. Only about half of the states require that the agreement be disclosed on the record, and an even smaller group mandate that the agreement be placed in writing. (27) Both caselaw and anecdotal accounts confirm that oral plea agreements are not uncommon, (28) even in jurisdictions that require the agreement to be in writing. (29) It is only when a plea agreemerit...

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