An Ohio Supreme Court justice is seeking reforms to plea deal processes, which he says are full of unknowns for defendants, who often surrender their constitutional rights.

Justice Michael P. Donnelly lists his concerns and solutions about discrepancies in plea agreements and their outcomes in an article published by the Akron Law Review titled, “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform.”

In the piece, Justice Donnelly details observations from his 14 years as a Cuyahoga County Common Pleas judge and how his experiences on the trial court bench, paired with his perspective as a member of the Supreme Court, compelled him to write about the need for systemic change to plea arrangements.

“Would you ever enter into a contract when you had no idea what benefit you would receive… [or] without knowing the terms to which you were obligating yourself?” Justice Donnelly asks in the article. “Regrettably, … criminal defendants do that every single day.”

The article explains the legal course of plea bargaining: a prosecutor and defense attorney settle on a recommended punishment, and a judge ultimately determines the sentence. Justice Donnelly highlights multiple procedural flaws that occur in pursuit of this type of conclusion to a case.

The fundamental issues Justice Donnelly raises are magnified because U.S. Department of Justice researchers estimate 90% to 95% of cases – state and federal – are resolved through plea deals.

He notes that prosecutors can charge multiple and different offenses based on the facts from a single event as a means of leverage against a defendant.

The high court jurist also points out two main inconsistencies in plea proceedings: Not all judges accept settlements between the prosecution and defense, and not all plea negotiations are on the record.

“One of the biggest threats to public confidence in the criminal justice system [stems] from off-the-record sentencing representations, whether from a judge in chambers or a defense attorney’s informed speculation,” Justice Donnelly wrote.  

As a means for transparency, the justice recommends that all discussions take place in open court. He believes a documented dialogue would ensure negotiations are fair between the prosecution and defense, which would include stating the rationale for the agreement.

For judges who choose not to accept a deal, an on-the-record discussion allows them to explain why they rejected the proposal, creating another level of accountability for review by the appellate courts, which would be armed with more information should a decision be challenged.

Since judges have the authority to reject a plea and make their own sentencing determinations, limited only by minimum and maximum punishments in the law, Justice Donnelly also suggests exploring reforms to curb unrestricted power.

“The best solution to obviate the unfairness of sentencing by ambush would be for the General Assembly to enact a complete data-driven overhaul of our present antiquated statutory scheme, along with reasonable sentencing guidelines and ranges to rein in judicial discretion,” he stated.

“This would prevent defendants entering plea agreements from facing vastly different outcomes based on the judge to whom they are randomly, but not inconsequentially, assigned.”

Addressing sentencing issues also is the aim of a larger initiative, led by Chief Justice Maureen O’Connor and Justice Donnelly, to develop a statewide sentencing database.

Both efforts emphasize the need for transparency as a way to provide more uniform and proportional sentences across the state, while limiting implicit bias.

“This reform would provide decision-makers (judges, prosecutors, defense counsel, and legislators) with information that is essential to ensure that better decisions are made regarding the most serious issue of incarcerating individuals,” Justice Donnelly said.