The American Bar Association’s Plea Bargain Task Force

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“The American Bar Association (ABA) was founded in 1878 on a commitment to set the legal and ethical foundation for the American nation.” The ABA has nearly 400,000 members, providing accreditation to law schools, as well as a code of conduct for legal practitioners. The ABA includes many groups focusing on different areas of law, including criminal law. The Criminal Justice Section recently created a Plea Bargaining Task Force. The Plea Bargaining Task force consisted of professionals across the ideological spectrum who critically examined the role that plea bargaining plays in America’s legal system.

On the topic of this Task Force, its creator and Co-Chair, Lucian E. Dervan commented,

Plea bargaining grew in the shadows of the American criminal justice system and came to dominate without being well understood or appropriately regulated. This task force and the recommendations it makes are an important step forward as we critically examine the role of plea bargaining today and consider how best to create a system for our future.

After three years of collecting and reviewing testimony from relevant experts, as well as examining current scholarly research and statutes concerning plea practices, the Task Force released its report. The report includes fourteen principles endorsed by its current members. Notably, all members (including representatives of the prosecution and the defense) recounted (via the report) that in the current plea system, “… at times, efficiency and finality trump truth-seeking” (p. 6).

This report is freely available to the public via the ABA’s Criminal Justice Section webpage; thus, I will not repeat all fourteen of the Task Force’s principles here. I will, however, expound on the significance of its first principle:

“A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system” (p. 14).

This principle echoes points made in the National Association of Criminal Defense Lawyers’ (NACDL) report on guilty pleas in which they also observed that trials are vanishing. The NACDL report included ten principles for which “The decline in the frequency of trials…” (p. 11) was noted in three.

The topic of criminal justice reform—as is true of too many topics—is rife with disagreement. But, many are in agreement that criminal justice reform is needed. Perhaps, at least one point on which prosecutors and defense attorneys can agree is that trials are a vital part of the American legal system, and are disappearing nonetheless.

An entire non-profit is now devoted to preserving fair trials and has teamed up with the newly-formed Plea Bargaining Institute to reform current plea practices. In light of these reports from both the ABA and the NACDL, perhaps legislators can also agree that now is the time to save the jury trial from extinction.

For let us not forget that,

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” – Sixth Amendment, U.S. Constitution