Confronting Underground Justice: Reinventing Plea Bargaining for Effective Criminal Justice Reform

Kelly, director of the Center for Criminology and Criminal Justice Research at the University of Texas at Austin, and federal judge Pitman (From Retribution to Public Safety: Disruptive Innovation of American Criminal Justice Policy) cogently analyze a common facet of the American criminal justice system: plea negotiations, which yield more than 95% of all criminal convictions. The prevalence of plea deals developed as a consequence of the massive uptick in arrests in the late 20th century, which made plea bargains essential to keep dockets from backing up with defendants demanding trials. As a result, some defendants pleaded guilty despite their innocence, and some did so in advance of pretrial hearings that would have determined the constitutionality of their arrest and the evidence sought to be used against them. The authors propose a number of reforms meant to address the perceived injustices of the current process, including creating a neutral plea mediator who would “serve the dual purpose of ensuring that each side had an adequate opportunity to consider the consequences of a plea as well as possible alternate outcomes.” But as thoughtful as their suggestions are, as they note at the end, the absence of “political will to make meaningful comprehensive reform a priority” makes this of more intellectual than practical utility. Still, this sobering study deserves a wide readership. (Nov.)