by David M. Reutter

More light must be shed on the plea-bargaining process, concludes a law review article published by Texas A&M University School of Law. 

Transparent data is needed to “promote negotiation effectiveness, competence in representation, and procedural justice.”

The article was written by Andrea Kupfer Schneider, law professor and director of the Dispute Resolution Program at the Marquette University School of Law, and Cynthia Alkon, professor of law and director of the Criminal Law, Justice, and Policy Program at the Texas A&M University School of Law.

The 60-page article takes an in-depth look at the secretive plea-bargain process and uses negation theory as a framework to assert that more information can improve this crucial component of the criminal justice system. As the Supreme Court of the United States (“SCOTUS”) has stated, “criminal justice today is for the most part a system of pleas, not a system of trials.”

Over 90 percent of all criminal cases nationwide are resolved through plea bargaining.

The article’s authors “argue that information, or lack thereof, is a significant limitation in ensuring legitimacy of plea bargaining and the entire criminal legal system.” They also assert that more information about the plea bargaining process is needed to enact criminal justice reform.

Over the last five decades, the incarceration rate in the United States grew by 400 percent, giving it the largest prison population and per capita incarceration rate in the world. There are 6.7 million adults on either parole, probation, or in custody. That is one out of every 37 adults. 

“Plea bargaining contributed to increased incarceration as it made mass processing of cases easier than it would have been if every conviction relied on a jury trial,” wrote the authors. They pointed to increased sentences, enhancements, and expansion of the definitions of what constitutes a crime as factors that helped tilt the scales of justice. “The impact of these changes was to contribute to the coercive atmosphere of plea bargaining by increasing prosecutorial power and to heighten the sense by many criminal defendants that they have no choice but to accept the plea bargain.”

That is because many defendants are aware of the “trial penalty.” A study of five guideline-sentencing states found that defendants who proceeded to trial “may receive sentences of up to four or five times higher than the plea bargain they were offered.”

Then, there is the anchor effect, which is a negotiation tactic in which the initial offer tends to have more power and “create an anchor” for future negotiations. Prosecutors may hinge future offers on the original, inflated offer “based on the prosecutor’s charges at arraignment (with all of the enhancements and multiple charges added) and the trial outcome (reflecting the trial penalty).” For a defense attorney, the maximum sentence can be a powerful anchor when that attorney has experienced a client getting “maxed out” after trial.

Changes in laws over recent decades increased prosecutorial power and put more pressure on defendants, including those who are innocent. After all, prosecutors have discretion as to what to charge and, during plea bargaining, prosecutors can threaten harsher penalties, even the death penalty. With such power, there is the potential for abuse. Troublingly, fear of receiving the maximum sentence prompts even the innocent to plead guilty.

The authors note that prosecutors can go about their business virtually unchecked: “Only the most egregious cases of prosecutorial misconduct are punished, and there are so few as to be noteworthy when a prosecutor is actually disciplined.”

While SCOTUS mandated that pleas must be voluntary and intelligent and that defendants have a right to effective assistance of counsel in the plea bargaining process, it has not subjected that process to scrutiny. It is doubtful that it will do so any time in the near future, for the Court has found negotiating is a matter of personal style. Moreover, plea bargaining, unlike other proceedings in criminal courts, lacks a record or transcript of what happens during negotiation. The lack of transparency can cast doubt on the system’s fairness and legitimacy.

“For people to have trust in the system, and for it to work, both parties in the system and the public watching the system operate need to believe that parties are treated fairly, that outcomes are just, and that players in the system with power — the prosecutors and judges — wield their power wisely,” wrote the authors.  “A key to legitimacy is procedural justice, meaning that the process or rules followed by those in positions of power are perceived to be fair. Procedural justice examines the process, rather than the outcome, to explain why parties believe in systems.”

To examine the inner workings of the plea-bargaining process, the authors argue more information on that process is needed. While it is known how many cases are resolved via a plea, “we do not know much beyond that simple statistic.” Unknown is the number cases in which a plea is offered, when it was offered, or how long the offer was open. What percentage of cases plead out to the filed charges, fewer charges, or entirely different charges than those at arraignment also are unknowns.

We also do not know if prosecutors refuse to make an offer, how often a defendant pleads out to a higher offer after the original offer was rejected, or how often defense lawyers make the first offer or if they make a counter offer. Is a better deal had at arraignment or on the eve of trial?

Courts report on the number and type of cases they handle and the manner and length in which those cases were resolved. “Asking a few simple additional questions could dramatically improve the information available regarding how plea bargaining works in any given state,” the authors wrote. “Current reporting about criminal cases is done by a few of the players, often for very different political reasons.”

District attorneys, who are elected officials, create reports for their government funders and to prepare for the next election. Courts, likewise, submit reports for funding purposes. The authors suggest that courts “move in the direction of collecting data that is by case so that lawyers, policymakers, and researchers can gain a better understanding of what is happening in a given courthouse with particular types of cases.”

Absent better data collection, “No one can make informed policy decisions to improve public safety, reduce costs, or identify patterns of inequity,” says Amy Bach, founder of Measures for Justice.

During its 2019 legislative session, Florida lawmakers made “the most serious attempt in the country so far to collect system-wide criminal legal data.” While that “law requires that an extensive list of data be collected, including the original charge, basic information about the defendants, whether the defendant is indigent, bail or bond information, the charge actually sentenced to, and the sentence imposed,” it fails to require data collection on “the single most common process for resolving criminal cases: plea bargaining.”

The authors identified eight categories of information that could be easily collected: (1) the charge at filing and for the guilty plea; (2) was defense counsel a public defender, publicly funded private attorney, or a privately retained lawyer; (3) dates of bar entry for both the prosecutor and defense attorney; (4) whether the defendant was a first time or repeat offender; (5) how the plea offer was made; (6) time limits on plea offer; (7) what was the first plea offer; and (8) the defendant’s gender, age, and race in context of the plea.

Collecting some other relevant information is more complicated. “For example, how many offers were made? Who made the first offer? How long did the lawyers talk (if they talked at all)? How long did the prosecutor review the case before making an offer? Were hard bargaining tactics used?” Collecting information on misdemeanor cases would be more difficult than in felony cases due to higher caseloads. Nonetheless, all this data would provide information “about legitimacy in the criminal justice system, particularly whether the process is fair.”

The article then discussed how negotiation theory helps explain why data is important and how it can increase the legitimacy of the plea bargaining system. In civil cases, judges review and approve settlements, keeping an eye, in certain contexts, toward protecting unrepresented third parties or the public interest. The current plea bargain system is little more than “bargaining in the dark,” the authors assert.

Even where a judge is told a plea offer was made, the court may never be told “that the offer was accompanied by a threat to add additional charges or enhancements if the deal was not accepted by a particular time.” Thus, “there is no process to catch prosecutor misbehavior.”
Lack of data also hampers the court’s ability to assess the fairness of an offer. “Judges can evaluate whether a particular offer seems in line with other offers in similar cases that have plead out in their courtroom, but they don’t know how representative the offer is with other similar cases in the same county, or in the state as a whole.”

Because many judges are former prosecutors, “they may not recognize as a problem behavior (in discovery) that they engaged in when they were practicing law.” Defense lawyers and prosecutors must work together daily, so if a defense attorney complains about a prosecutor’s behavior in a specific case, it may make negotiation in others harder. While a judge may find an offer is unjust against a defendant for race related reasons, “the average judge would not have enough information to make that evaluation or to be able to come to that conclusion.”

An “exploding offer” is regularly made by prosecutors, meaning they impose a time limit such as “today only” on a plea offer. In the civil context, negotiator’s consent is protected by providing for a cooling off period. Exploding offers require defendants to make a snap decision before “they have come to appreciate the consequences.”

Going into the plea bargaining without the benefit of discovery is not unusual. Only a few states have comprehensive discovery rules. “At this point we do not know how widespread a problem it is that defendants are pleading guilty before getting full discovery.” That basic information can help defendants and their attorneys better evaluate the case. “Pleading guilty before getting full discovery is something that flies in the face of basic concepts of fairness.”
While “take-it-or-leave-it-offers” are volatile of the duty to bargain in good faith, there are no such guidelines in plea bargaining. Lack of data when such tactics are employed by prosecutors puts defense attorneys at a serious disadvantage. More information about the history of when and under what circumstances such tactics are employed could help the defense determine if it should call the bluff when hard bargaining tactics are used.

“In some jurisdictions, for example, it is clear that once the case is sent out for trial, the deal is off,” the authors note. Yet, “[i]n other jurisdictions, the moments before a case is sent out for trial may be the time the real bargaining begins.”

The authors explain they pointed all this out to demonstrate that our “criminal justice system was not created nor intended to provide confidentiality.”

The Constitution requires criminal proceedings to “happen in courtrooms open to the public. Modern day plea bargaining has hijacked this intention as the entire process happens in private and is completely hidden from the public.”

The lack of transparency in that process affects the effectiveness of defense counsel, for the secrecy tilts the scales of justice in favor of the most powerful player within the criminal justice system: the prosecutor.

Another hindrance is that there is no way to determine what is a “standard deal” in a criminal case. “In general, defense lawyers tend to have strong comradery and share information freely. But the lawyer asked might routinely get worse deals than other lawyers in the courthouse and not know it, so they may not be sharing accurate information.”

This lack of information makes it difficult, if not impossible, to use objective criteria to set negotiation goals and to frame persuasive arguments to the negotiation counterpart.

Negotiation theory also focuses on the importance of offering options to achieve optimal outcomes. “In plea bargaining, and particularly in the face of trying to reduce mass incarceration and deal with systemic problems, both prosecutors and defense counsel would benefit by knowing how other defendants have been treated in the system.”

Former prosecutor and negotiation theorist Richard Burke believes defendants accept deals because of poor information and that risk aversion plays a key role. He writes that most deals are not so good as to warrant the risk aversion behavior, “but rather, that institutional pressures cause defense attorneys to induce pleas from their clients.” Thus, if a defendant is better informed about a variety of outcomes, he or she would either choose to go to trial or push for negotiation of a better deal.

The authors conclude that the knowledge their article focuses on would help “an individual lawyer in an individual case to assess the deal, and information that helps the lawyers to improve their negotiation skills.” They note that data collection faces barriers. Underfunded courts are already overtaxed. Judges, prosecutors, and defense lawyers fear the information will be used against them or their institution. Finally, improving plea bargains for defendants is not politically popular.

Nonetheless, data collection in the plea bargaining process, the authors argue, is essential to ensuring the perceived fairness of the criminal justice system. Targeted reforms will help the lawyers working in that system perform their jobs more fairly and effectively. “In short, shedding more light on the process will keep us from bargaining in the dark.” 

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Source: Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining (2019). New Criminal Law Review, Vol. 22; Marquette Law School Legal Studies Paper No. 19-17; Texas A&M University School of Law Legal Studies Research Paper No. 19-65. Available at SSRN: https://ssrn.com/abstract=3491466.

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