The Criminal Justice Section of the American Bar Association (ABA) in 2019 formed The Plea Bargain Task Force (Task Force) “to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving cases through negotiated resolutions.”
Therefore, the ABA decided that a “critical examination” of plea bargaining was both “necessary and important,” particularly since 98 percent of all federal criminal cases are resolved through plea agreements. Some of the findings of the Task Force released this past February are stunning:
- The benefits of plea bargaining (and there are some) are too often utilized as a means to “mitigate the harshness of the modern criminal justice system.”
- There is substantial evidence that defendants—including innocent defendants—are sometimes “coerced into taking pleas and surrendering their rights to trial.”
- Prosecutors exploit defendants’ fear of mandatory sentencing if convicted by trial to induce defendants to plead guilty in cases where they “otherwise would prefer to exercise their constitutional right to have the case decided by a jury.”
- Mandatory collateral consequences, such as the threat of deportation, force defendants to accept guilty pleas rather than face trial.
- The integrity of the plea bargaining system is now negatively impacted by the sheer volume of the system.
- Police and government misconduct often goes unchecked because defendants plead guilty before pretrial discovery motions can uncover their wrongdoing.
- Defense attorneys are less likely to properly investigate cases because they know their clients will probably take a plea deal.
- The plea bargaining system incentivizes everyone to expeditiously resolve cases rather than justly decide them.
- The plea bargaining system is tainted with systemic racism, producing a laundry list of racial disparities.
The ABA’s House of Delegates, at its August 2023 convention, formally adopted the Fourteen Principles for change spelled out in the Task Force’s February report.
The ABA’s 2023 Plea Bargain Task Force Report Principles
Principle 1: 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.
Principle 2: Guilty pleas should not result from the use of impermissibly coercive incentives or incentives that overbear the will of the defendant.
Principle 3: In general, while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.
Principle 4: Charges should not be selected or amended with the purpose of creating a sentencing differential, sentencing enhancement, punishment or collateral consequence to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.
Principle 5: The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.
Principle 6: A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
Principle 7: There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.
Principle 8: The use of bail or pretrial detention to induce guilty pleas should be eliminated.
Principle 9: Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
Principle 10: Although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement.
Principle 11: An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
Principle 12: Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of the 2023 ABA Criminal Justice Section Plea Bargain Task Force Report.
Principle 13: Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
Principle 14: At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.
On August 17, 2023, the Fifth Circuit Court of Appeals handed down a decision as the ABA was adopting these Fourteen Principles. United States v. Cuff illustrates the legal pitfalls of the plea bargaining system and the government misconduct frequently associated with the system.
In 2011, while residing in Louisiana, Robert Cuff, became a member of an online bulletin board that trafficked in child pornography. As a member, he posted 43 files to the board, most depicting adults engaged in sexual activity with children. The post elevated him to a VIP status among the other members.
Cuff was eventually arrested by federal law enforcement officials and confined in the Bossier Parish Jail. A federal grand jury, sitting in the Western District of Louisiana in Shreveport, formally indicted him for three counts of distribution of child pornography.
Following Cuff’s arrest, federal law enforcement officials searched his home in El Paso, Texas, where they discovered videos showing him engaged in sexual activity with his girlfriend’s five-year-old daughter. Those videos subjected him to a federal grand jury indictment in the Western District of Texas.
Cuff and his attorney, both aware of the potential legal liability in Texas, began negotiating a plea agreement with federal prosecutors in Louisiana. The defense attorney specifically asked the Louisiana federal prosecutor if Cuff faced any charges in Texas for the video involving the girlfriend’s daughter. The prosecutor deferred, referring defense counsel to the federal prosecutor in Texas.
The Texas federal prosecutor told defense counsel that the victim’s family was reluctant to have the child testify about the abuse. He said his office would not prosecute Cuff but would turn the videos over to the Louisiana prosecutor’s office to be used in his sentencing there.
Assured there would be no legal liability in Texas, defense counsel recommended that Cuff accept the plea deal being offered in Louisiana: the government would drop two of the original charges and accept a plea to one count of engaging in a child exploitation enterprise.
On December 1, 2011, Cuff agreed to the Louisiana plea agreement, which was accepted by the court.
The Texas prosecutor, on December 14, 2011, secured an indictment of Cuff for sexually abusing the five-year-old child. In an egregious act of professional, ethical misconduct, the prosecutor moved the Texas court to seal the indictment, claiming “the disclosure of the indictment would seriously jeopardize the ability of law enforcement officers to locate the Defendant and apprehend him without incident.”
The Texas prosecutor knew this was a deliberate lie. He had information from both Cuff’s defense counsel and Louisiana prosecutors that Cuff was sitting in the Bossier Parish Jail (and had been since July 2011) awaiting sentencing on the negotiated Louisiana charge.
The Texas court granted the motion and issued an Order to Seal. The order stipulated that the indictment would be made public upon Cuff’s arrest, which had already occurred five months earlier.
On January 9, 2012, the U.S. Marshals Service lodged a “detainer” against Cuff with the Bossier Parish Jail. A detainer is not an “arrest.” It is simply a notice that jail officials hold an inmate until law enforcement officials in another jurisdiction can pick him up.
Cuff and his defense were not aware of the indictment, the order to seal the indictment, or the lodged detainer.
In July 2012, Cuff and his defense counsel appeared in the Louisiana federal court for sentencing. A Presentence Investigation Report (PSR), influenced by the videos of Cuff engaging in sexual activity with the five-year-old, recommended a sentence enhancement that increased his sentencing range to life imprisonment. Cuff immediately moved to withdraw his guilty plea on the “grounds that an anti-malarial drug he was prescribed while serving in the U.S. Navy had driven him insane at the time he pled guilty.”
The court denied the motion, adopted the PSR’s recommended enhancement, and sentenced Cuff to life imprisonment.
In August 2012, Cuff was given notice of the Texas federal indictment.
On appeal to the fifth circuit, Cuff argued that this secret indictment violated his Louisiana plea agreement.
The Fifth Circuit has remanded the case back to the district court to sort out the factual details and determine if those facts sufficiently prejudiced Cuff to permit a withdrawal of his guilty plea.
We would add that the Texas Bar Association should open an overdue inquiry into the actions of the federal prosecutor in El Paso to determine if he knowingly submitted false legal pleadings to the court.