Dark pleas and the justice gap: 7 questions for Michael Donnelly, candidate for Ohio's Supreme Court

I met Judge Michael Donnelly at an event in Cincinnati where he spoke about some of the issues he was seeing in the justice system. He opened my eyes to a few of the challenges our judicial system faces, so I asked him if he’d answer a few questions. 

1. Transparency in the plea-bargaining process is a major platform of your campaign. Can you explain why?

97 percent of all criminal cases in the justice system do not proceed to trial. They are resolved by negotiated plea agreements. As one United States Supreme Court Justice once put it, plea bargaining isn’t just a big part of the criminal justice system, it IS the criminal justice system. Even though plea agreements are the main mechanism through which we resolve criminal cases, the process remains a mystery to the vast majority of the citizens we serve.

Judge Donnelly discussing issues with a voter in Cincinnati. 

In a typical plea bargain, the prosecutor, who wields great power in the process, must first decide whether to prosecute someone to the fullest extent of the law or whether there are valid reasons to exercise restraint. He or she will then offer some form of benefit to the accused in exchange for an admission to the criminal conduct contained in the indictment. This benefit will almost always relate to the consequences, i.e. the sentence the defendant will likely receive if he or she chooses to enter into the agreement.

There is one final step that must take place to finalize a plea agreement in open court: the judge presiding over the case must sign off on it. This important step is supposed to be a check on the system by having a neutral party determine if the accused is entering the plea agreement knowingly and voluntarily.              

I believe part of the reason why there exists so much perceived injustice and disparity of treatment in our system is because the law provides very little guidance to judges on how to exercise their power to approve or reject negotiated plea agreements. Indeed, a defendant in a criminal case has no right to even be offered a plea agreement.

In our state, many pleas are finalized in off-the-record discussions that usually take place in a judge’s chambers. Early in my first term as a judge I began to question why this occurs and I arrived at the conclusion that NO ONE in the process should ever say anything in these discussions that they would not be willing to repeat verbatim on the record. I also concluded that stakeholders such as the accused, the victims, and the general public should have the right to be present when these agreements are finalized. For these reasons, I chose early on to have all discussion in open court and on the record, so everyone can understand how cases are being resolved. I believe this transparency fosters confidence in the judicial process.

2. When I heard you speak, you talked about baseless pleas. For example, someone being charged with rape being allowed to plea to an unrelated felony like aggravated assault. What are baseless pleas, and why do you believe they should not be permitted?