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ABA releases scathing plea bargain report

On Behalf of | Mar 20, 2023 | Criminal Defense |

The Sixth Amendment gives criminal defendants in Nebraska and around the country the right to a trial before an impartial jury, but very few of them have their day in court. That is because about 98% of criminal cases in the United States are settled at the negotiating table when defendants enter into plea agreements. This is a startling figure, and it prompted the American Bar Association to appoint a task force made up of judges, prosecutors, criminal defense attorneys and academics to delve into the way plea agreements are reached. The task force’s conclusions are contained in a report released by the ABA on Feb. 22, and they are sobering.


The ABA task force discovered that defendants are often coerced into accepting plea bargains by fear of what is called the trial penalty and a prosecutor’s tactic known as stacking. The trial penalty refers to the extra seven to nine years defendants on average spend in prison if they reject plea agreements and are then found guilty after trial, and stacking is a practice that involves filing extra charges against defendants to give prosecutors a stronger negotiating position. The fear this creates is profound, and it can encourage even innocent defendants to plead guilty. The Innocence Project says that it has exonerated dozens of innocent people who accepted plea offers because they feared the trial penalty and were subjected to stacking.

Discovery phase

The ABA report also reveals that plea bargains are frequently entered into before criminal cases have reached the discovery phase. This is the point when criminal defense attorneys and their clients are given an opportunity to scrutinize the evidence gathered by police. Agreeing to plead guilty prior to discovery suggests that many plea agreements are entered into by defendants who have no idea how strong the cases against them actually are.

Efficiency or justice

The criminal justice system can be efficient or it can be fair, and the figures indicate that judges and prosecutors have come down on the side of efficiency. Plea agreements keep the wheels of justice turning, but this expediency is reliant on coercion and fear.