Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted Transparency in Plea Bargaining (Notre Dame Law Review, Vol. 96, No. 1, Forthcoming) on SSRN. Here is the 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.