Criminal Justice Forum & Constitution Day Lecture: Should Plea Bargaining Be More Transparent?

Plea bargaining has long been the dominant method of resolving cases in U.S. criminal courts. Today, over 95% of convictions at the state and federal level are obtained through guilty pleas. Unlike the trials it replaces, however, plea bargaining remains notoriously opaque. It does not occur on the record in a public courtroom. Instead, deals are commonly struck informally, in an office, on the phone, or in the courtroom hallway. Victims and members of the public are excluded, and the defendant is also typically absent. Plea offers are often not documented, and even the final plea agreements are not always placed on record with the court. The opacity of plea bargaining stands in stark contrast with the constitutional commitment to publicity of criminal proceedings, enshrined in the Sixth Amendment right to a public trial and the First Amendment right of public access to the courts.

The presentation will review the main reasons for and against secrecy in plea bargaining. While there are valid reasons for maintaining confidentiality in some aspects of plea negotiations, better documentation and greater transparency can enhance the fairness and public legitimacy of the process. Highlighting technological developments that make documentation more feasible, the presentation will suggest some concrete ways in which states and the federal system can increase transparency in plea bargaining while addressing legitimate reasons for confidentiality.

Jenia Turner is the Amy Abboud Ware Centennial Professor in Criminal Law at SMU Dedman School of Law in Dallas, Texas, where she teaches U.S. and comparative criminal procedure, international criminal law, and international law. Jenia has written numerous law review articles on criminal procedure and international criminal law topics, as well as a textbook, Plea Bargaining Across Borders, exploring plea bargaining in several national and international jurisdictions. She also co-edited The Oxford Handbook of Criminal Process (with Darryl Brown and Bettina Weisser, 2019) and Criminal Procedures: Cases, Statutes, and Executive Materials (with Marc Miller, Ronald Wright, and Kay Levine 2019).

The program is free and open to the public but registration is required.

Register