72 Am. U. L. Rev. 1919 (2023).

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Abstract

The last decade has seen a significant growth in academic research and literature related to coercive plea bargaining. One thread that emerges from this research is how coercive plea practices encourage innocent defendants to falsely condemn themselves, and sometimes even other innocent people to get the benefit of a “good” deal. This Article compiles and synthesizes this research to highlight how and why typical plea bargaining can lead to false guilty pleas. It also frames those who falsely plead guilty in the face of coercive bargains and those who are subject to false testimony as a result as victims of plea bargaining. In this way, we expand our conceptions of who should be viewed as a victim in our current system of pleas more broadly.

The growing realization that coercive plea bargaining leads to many different types of victims reinforces the pressing need for plea bargaining reform that addresses coercive bargaining and false guilty pleas. To that end, this Article highlights suggestions for reform from a recent report of the ABA Plea Bargain Task Force that address mechanisms for reducing the risks of coercive bargains.

* This is the first of two pieces examining the issue of “victims of plea bargaining.” This Article was presented at the 15th Annual Vanderbilt University Law School Criminal Justice Roundtable in 2022. Our thanks to the many scholars who provided feedback and comments on this Article, including, Chris Slobogin, Nancy King, Chaz Arnett, Sam Kamin, Rob Mikos, Jackie Ross, Andrew Roth, India Thusi, Sara Mayeux, Larry Rosenthal, and Alex Kreit.

** Professor of Law and Director of Criminal Justice Studies, Belmont University College of Law. Founding Director, Plea Bargaining Institute; Co-Chair, ABA Plea Bargain Task Force.

*** Psychology Professor Emerita, Florida Institute of Technology; Member, ABA Plea Bargain Task Force.

**** Professor of Law, Rutgers Law School; Reporter, ABA Plea Bargain Task Force.