By: Niki Hotchkiss

Given the gravity—and frequency—of guilty pleas, how can judges and courts ensure that defendants are making these pleas knowingly, intelligently, and voluntarily?  

Most often, judges have a discussion with the defendant on the record to confirm that the defendant understands the rights being waived and the potential consequences of the plea.¹ This is key to due process but may not always result in a clear understanding of the process and the terms.² Giving defendants a written tender-of-plea form that clearly lists rights being waived, potential collateral consequences, maximum punishments, and verification that the plea is voluntary along with time to ask questions of their attorney prior to the hearing can help courts make sure that defendants understand the process. 

This addition can also help with procedural fairness; complete and understandable tender-of-plea forms may increase trust and confidence in the courts in the plea process specifically and the courts more generally.  

Below are ideas, based on 2015 research by Allison Redlich and Catherine Bonventre,³ of what to include in a tender-of-plea form to improve the plea process and support the principles of procedural fairness:⁴ 

Voice 

Giving defendants two different methods—orally and in writing—to present their story allows more opportunity to effectively give their perspective. An opportunity to write down their version of events prior to the hearing removes tight time constraints, can help them prepare, and gives them a resource on which to rely if they get nervous and lose their train of thought in the stress of the hearing.  

Neutrality  

Including concepts to increase the “knowing and intelligent” nature of the plea can help reinforce the neutrality of decision-making in the court, and therefore decrease feelings of bias and discrimination. For example, listing all potential penalties of this plea in a form, including the maximum period of incarceration or supervision and collateral consequences, highlights that similar cases are subject to similar punishments.  

Respect and Trust 

Verifying that the plea is being made voluntarily may reinforce the concepts of respect for the rights of the defendant and trust in the process. As Redlich and Bonventre suggest, this can be achieved by including statements in the form confirming that no threats or coercion were used in the process and that no promises other than the plea itself were made.  

Understanding the Process 

Including each of the elements listed above can help defendants understand the process and the meaning of their plea. However, a tender-of-plea form is not useful for improving the plea process unless it is written to be clearly understandable by most defendants.  

Using two different measures of reading level, Redlich and Bonventre found the forms they analyzed to be between the 9^th and 12^th grade reading level. Forms should aim for a reading level of 6^th grade or lower and avoid legal jargon to be properly understood by the largest number of users. 

Procedural fairness is positively associated with respect for the court and compliance with court orders.⁵ In criminal cases, if a defendant feels they have been treated fairly and are therefore more likely obey court orders, they may also be less likely to reoffend. To increase procedural fairness in criminal cases, the process must be respectful and transparent to the parties involved from beginning to end. One way to do that with the plea process is to incorporate the use of a complete and understandable tender-of-plea form.  

The process of implementing a tender-of-plea form will vary by court. While currently no model form exists, Redlich and Bonventre’s article includes a list of content elements that could be included. Additionally, the National Center for State Courts is partnering with the National Association of Criminal Defense Lawyers (NACDL), Association of Prosecuting Attorneys (APA), and RTI International as part of the Sixth Amendment Training and Technical Assistance project, led by the NACDL with funding from the Bureau of Justice Administration (BJA). One of the goals of this project is to develop a model tender-of-plea form that courts can use to increase due process. This work will continue through 2024.