The Risks of Plea Bargaining Behind Closed Doors

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Plea bargaining, which accounts for more than 95 percent of state and federal convictions, needs to become more transparent, according to a forthcoming paper in the Notre Dame Law Review.

While the main criticism of plea bargaining is that it’s coercive and leads innocent people to plead guilty, lack of transparency in the process can be just as damaging to perceptions that justice has been administered fairly, writes Jenia Iontcheva Turner, the Amy Abboud Ware Centennial Professor in Criminal Law at Southern Methodist University Dedman School of Law.

Plea bargaining not only often excludes the defendant but victims of crime and the public, the paper said.

“Given the significant costs of secrecy, it is time to revisit the issue,” Turner wrote.

Turner explained that through the American history of plea deals, the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, but they do not apply to plea negotiations.

Because of this, detailed information about what was discussed in a plea negotiation, such as what was used as mitigating evidence, is not available to the public.

This leaves virtually everyone except the defense attorney and prosecutor in the dark.

Turner acknowledged that there are valid reasons for the secrecy, such as the need for privacy and confidentiality for prosecutorial discretion and cooperating defendants.

This closed-door approach may also “expedite cases and conserve resources,” Turner wrote.

But, Turner said, that secrecy also rings alarms.

Because of this, she suggests several ways in which transparency can be improved without imposing significant costs on the already cash-strapped justice system.

States and counties can mandate that all parties in a plea agreement discussion keep a written record of the discussion for the court. Turner noted many state and federal systems already do this.

The point of the written requirement, Turner explained in the paper, is that the documentation helps reduce possible future disputes from either side and better “aligns with our constitutional commitment to open criminal proceedings.”

Moreover, lawmakers can require that plea officers are placed “on record with the court” even if a defendant rejects and goes to trial and that state and federal systems should encourage probing judicial review of these plea agreements for better transparency.

Finally, Turner suggests that we turn to technology for help by constructing a new database — one that outlines and records “plea offers, charging decisions, sentencing outcomes, and other key facts about a criminal case.”

“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,” Turner wrote.

“As with other governmental databases containing sensitive and private information, plea database design will also need to prioritize data security to ensure that the information is protected from hacking and misuse,” Turner wrote, adding that this would create “notable benefits” for the justice system.

This recommendation is paramount and can offer the best results for cost-effective case management while supporting better data collection on the criminal process.

When it comes to smaller, rural offices that may not have the manpower or infrastructure, Turner suggested that state or federal support should be provided.

“These reforms would improve the fairness and accuracy of plea bargaining, would be consistent with our constitutional commitment to open criminal proceedings, and would be realistic and manageable,” Turner concluded.

“We can do more to enhance the documentation and transparency of plea bargaining.”

The full paper can be accessed here. 

Andrea Cipriano is a TCR staff writer

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