Transparency in Plea Bargaining

60 Pages Posted: 29 Jun 2020 Last revised: 1 Jul 2020

See all articles by Jenia Iontcheva Turner

Jenia Iontcheva Turner

Southern Methodist University - Dedman School of Law

Date Written: February 27, 2020

Abstract

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. 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.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record. Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations. For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

There are some valid reasons for protecting aspects of plea negotiations from public scrutiny. Confidentiality fosters candor in the discussions and may encourage prosecutors to use their discretion more leniently. It can help protect cooperating defendants from retaliation. And it may expedite cases and conserve resources.

Yet the secrecy of the process also raises concerns. It prevents adequate oversight of coercive plea bargains, untruthful guilty pleas, and unequal treatment of defendants. It can hinder defense attorneys from providing fully informed advice to their clients. It can also potentially impair victims’ rights and interests. Finally, the absence of transparency leaves judges with few guideposts by which to evaluate plea bargains and inhibits informed public debate about criminal justice reform.

This Article reviews plea bargaining laws and practices across the United States and argues that we can do more to enhance the documentation and transparency of plea bargaining. It then proposes concrete areas in which transparency can be improved without significant costs to the criminal justice system.

Keywords: Plea Bargaining, Guilty Pleas, Plea Agreements, Plea Negotiations, Transparency, Open Trial, Public Trial, First Amendment, Sixth Amendment, Plea Databases, Court Records

JEL Classification: K14, K19, K42, K49

Suggested Citation

Turner, Jenia Iontcheva, Transparency in Plea Bargaining (February 27, 2020). Notre Dame Law Review, Vol. 96, No. 1, Forthcoming, SMU Dedman School of Law Legal Studies Research Paper No. 475, Available at SSRN: https://ssrn.com/abstract=3545536

Jenia Iontcheva Turner (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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