More than a decade ago, in a case known as Missouri v. Frye, former U.S. Supreme Court Justice Anthony Kennedy wrote that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system."

Recently, the American Bar Association (ABA) released its 2023 Plea Bargain Task Force Report. Three years in the making, the report revealed that in 2018, only 2% of federal criminal cases ended in a jury trial. The task force examined how the emphasis on resolving criminal cases through plea bargains negatively impacts the integrity of the criminal justice system by creating "perverse incentives" for lawyers and judges to conclude cases quickly instead of justly.

The plea bargain, however unpopular or unseemly, is an important tool in the administration of justice. Plea bargains save the government time, money, and the trouble of actually proving a case beyond a reasonable doubt. If the plea bargain were to disappear the criminal courts would grind to a halt.

However, just because the plea bargain is needed doesn't mean it is fair, just, and in line with some of America's most fundamental constitutional rights.

The ABA report lays out a number of principles for reform—including that people should not be penalized with harsher sentences by exercising their right to a trial, and that people are often incentivized to plead guilty for reasons that have nothing to do with their actual guilt or innocence.

A 2018 National Association of Criminal Defense Lawyers' report found, "There is ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This 'trial penalty' results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial."

The problem is best exemplified by the reality that one in four people exonerated by DNA in the United States confessed to the crime charged. It seems astonishing that a person would plead guilty to a crime they did not commit.

Here are some things to consider. In the United States of America, a police officer can lie to an accused about incriminating evidence during an interrogation and elicit a confession, and the U.S. Supreme Court has said there is nothing wrong with such conduct.

Sixty years ago, the Supreme Court acquiesced to the potentially innocent pleading guilty. Henry C. Alford was indicted for first-degree murder, a capital offense in North Carolina. Although he proclaimed his innocence, he pleaded guilty to killing a man with a shotgun. He said in court, "I'm not guilty, but I plead guilty."

The Supreme Court ruled in North Carolina v. Alford, "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."

Then there is the trial penalty—the act of accepting a plea bargain due to the fear of a harsh sentence if convicted at trial. There are reams of data to support the existence of the trial penalty. The trial penalty—and the need to have one—point to the dire state of the criminal justice system. The burden of proof—beyond a reasonable doubt—is rarely employed. The prosecution is rarely forced to prove anything beyond probable cause to make an arrest.

There is an incentive in the system to plead guilty to crimes that were charged but not committed. Police often over-charge defendants. The most serious charges are dropped and the defendant is expected, under oath, to make admissions to crimes he did not commit. The benefit of the plea bargain often comes at a high price to the defendant and to the system. The impact of race in plea bargaining cannot be overstated. The ABA report details significant racial disparities in the plea bargaining. Hannah Dean wrote in Jurist Magazine of Duquesne University School of Law, "Prosecutors' decisions to drop or reduce charges as part of a plea bargain reveal stark racial bias. White defendants are 25% more likely than Black defendants to have their most serious charge dropped or reduced as part of a plea bargain, and Black defendants frequently receive higher sentences for the same charges as their white counterparts."

For the most part, plea bargaining is not governed in detail by rules of court or established policy. What Kennedy called "the criminal justice system" has few safeguards and little oversight. A plea offer can be arbitrary and subject to the whim of the prosecutor. In fact, a prosecutor has no obligation to even negotiate a plea with a defendant.

In Pennsylvania if one is looking for guidance of plea bargains here is what is codified on the subject:

Plea Agreements

• At any time prior to the verdict, when counsel for both sides have arrived at a plea agreement, they shall state on the record in open court, in the presence of the defendant, the terms of the agreement, unless the judge orders, for good cause shown and with the consent of the defendant, counsel for the defendant, and the attorney for the commonwealth, that specific conditions in the agreement be placed on the record in camera and the record sealed.
• The judge shall conduct a separate inquiry of the defendant on the record to determine whether the defendant understands and voluntarily accepts the terms of the plea agreement on which the guilty plea or plea of nolo contendere is based.

The ABA report's 14 principles for reform are a small step in a long journey toward fairness and transparency in the criminal justice system. Unfortunately, those accused of criminal conduct do not have a very strong lobby. One way to change this process is through the legislation. The prospect is daunting; there are 50 different legislatures and a Congress that needs convincing.