A change in the environment of plea bargaining: using the inspiration of administrative procedural safeguards like NEPA to add process protections.

• Author: Jedick, Jared Robert
• Position: National Environmental Policy Act of 1969

1. Introduction

   Plea bargaining has evolved into the most prominent way criminal justice is administered in the United States today, (1) even though it is met with general disdain in legal academic circles. (2) Recently, the issue of the right to effective assistance of counsel during the plea-bargaining process was raised twice before the Supreme Court of the United States, bringing the process to the forefront of national attention. (3) In Lafler v. Cooper, the Supreme Court determined that the petitioner was prejudiced by his counsel's deficient performance in advising him to reject a plea offer and go to trial, in violation of his Sixth Amendment right to effective assistance of counsel. (4) He was therefore entitled to be reoffered the plea deal by the state and to have the state court determine whether sentencing should be reconsidered. (5) In Missouri v. Frye, the Supreme Court also found ineffective assistance of counsel based upon defense counsel's failure to report a formal plea offer to his client. (6) In response to the holdings in these two cases, Supreme Court Justice Antonin Scalia stated in his fiery dissent:

   With those words from this and the companion case, the Court today opens a whole new field of constitutionalized criminal procedure: plea-bargaining law. The ordinary criminal process has become too long, too expensive, and unpredictable, in no small part as a consequence of an intricate federal Code of Criminal Procedure imposed on the States by this Court in pursuit of perfect justice. (7) With these two cases, the Supreme Court has reaffirmed the legitimacy of plea bargaining and cemented its place as the most important means by which criminal convictions are administered in this country. (8) Plea bargaining can no longer be ignored as an undesirable but necessary byproduct of our criminal justice system. It includes procedural and substantive rights that will be recognized and protected by the United States Supreme Court. (9) Lafler and Frye demonstrate that it is essential to develop an effective but cost-effective system by which to manage and provide oversight for the plea-bargaining process.

   Plea bargaining involves a great deal of prosecutorial discretion. In fact, American University law professor Angela J. Davis stated that "[u]nchecked power in the hands of prosecutors is as much a threat to our democracy as it is with any other government official, if not more." (10) The prosecutor is normally able to choose the charge and recommend a sentence. (11) This large amount of power places the prosecutor in the position of making unilateral decisions that will directly affect a criminal defendant and will ultimately direct the likely result of any future plea bargain. (12) In light of this immense power vested in a single individual, it becomes necessary to consider the implications of this pervasive and immensely powerful system and how to monitor and control it. But plea bargaining cannot be controlled through a purely adversarial model. Instead, this Note suggests that we should look to the plea-bargaining process through the lens of an administrative model. (13)

   With the rise of plea bargaining, criminal justice has evolved from a purely adversarial system of trials and litigated justice in which the decisions are made by judge or jury to a system of administrative justice where the prosecutor makes the most important decisions in charging and plea bargaining. (14) Because of the overloaded, criminal dockets across the country stemming from overcriminalization, (15) the traditional adversarial process of trials protected by rules of evidence and zealous advocacy on both sides has given way as the criminal justice system has tried to find ways to deal with complex criminal matters as quickly and efficiently as possible. (16) With this focus, it becomes easy for the wheels of justice to move too quickly and mistakes to be made. Heavy caseload burdens lie on both the prosecutor and defense attorney alike, as the sheer volume of criminal proceedings and overloaded criminal dockets lead attorneys who do not have the necessary time to properly consider each case to make hasty decisions. This is in part because very few of the protections one would find in a traditional adversarial trial are found in the plea-bargaining process, except for the right to effective assistance of counsel discussed above. (17) If the criminal justice system and plea bargaining is viewed as an administrative system of justice, then it becomes necessary to put in place administrative-style safeguards.

   Inspiration for such administrative safeguards can be taken from the National Environmental Policy Act (NEPA), which establishes a broad administrative mandate to administrative agencies to take certain environmental concerns into account when making decisions and document their analysis without interfering with the agency's discretion itself. (18) This idea of ensuring procedure by documentation can be extended to the essentially administrative task of offering a plea bargain. In order to provide the necessary oversight, this Note suggests prosecutors should be required, after the formal plea offer, to provide a short document detailing the reasons why a certain deal was offered to a supervising attorney or prosecutor for review. Even if the supervising attorney merely glances at the document without providing thorough oversight, the procedure itself would force the prosecutor to carefully consider the reasons used to justify the plea offer and would subject his decision-making to scrutiny without removing his prosecutorial discretion. Undoubtedly the vast majority of prosecutors take their responsibility to serve justice seriously, and a procedure to make explicit the factors they considered in formulating a plea offer will usually be followed scrupulously, even without thorough oversight. Even if some bad-actor prosecutors are able to slip through the cracks, this proposal could significantly lessen unfairness and inconsistencies between plea offers by creating a log of past plea offers that can be consulted by the prosecutor when making decisions on future plea offers. This requirement would also create a reviewable document that could be placed under judicial scrutiny (19) (in the rare event that a defendant/plaintiff could meet the burden of United States v. Armstrong), (20) or could be used to evaluate consistency and fairness in plea offers during job performance reports and in promotion, hiring, and firing decisions. While this would add to the amount of time the prosecutor must spend considering the offer, it would not hinder or remove any of his discretion. This system would also keep all information relating to plea-bargaining decisions in-house, preventing the disclosure of trial strategy to defense attorneys. (21) The additional burden placed upon prosecutors to conduct this formal analysis would presumably not add significantly to caseloads, as at most it would add the fifteen minutes to a half hour it would take to consult previous offers and fill out the form. Finally, it would require no new funding for additional prosecutors or investigators, as the current prosecutors could handle it themselves.

   Part II of this Note will explore the nature of the American criminal justice system today and the place of plea bargaining within that framework. The section will explore the pitfalls and criticisms of the plea-bargaining process, demonstrating the need for some kind of oversight to monitor and regulate the process. Part III will describe how plea bargaining has come to resemble more of an administrative and inquisitorial model, rather than an adversarial one. Finally, in Part IV, taking inspiration from the administrative and inquisitorial model and NEPA, this Note will examine the possibility of applying procedural oversight and guidelines to the plea-bargaining process as a possible solution, providing some necessary protections that will help to alleviate some of the problems and criticisms associated with plea bargaining.

2. NEGOTIATED PLEA BARGAINING AND ITS ETHICAL ISSUES

   1. Plea Bargaining as Negotiation and Contract

      Plea bargaining has grown to resemble contract law, where the protections of the trial process are no longer afforded. (22) In fact, the manner in which most criminal cases are handled would seem so casual and expedited as to shock an observer with no knowledge of how the process works. (23) The traditional criminal process involves a trial where a judge or jury adjudicates guilt or innocence. The trial involves "tough adversarial argument from attorneys for the government and defense, and fair-minded decision making from an impartial judge and jury." (24) However, these protections do not exist when the focus is on the negotiation between the prosecutor and the defense attorney and the trial itself is foregone. As professor Graham Hughes of New York University put it:

      [T]he trial has become no more than an occasional adornment on the vast surface of the criminal process. This fundamentally disorients the system, for our professed constitutional model depends upon the setting of a trial.... The trial in turn looks forward to careful review at the appellate level. But of what value are our ideals and our learning when the trial hardly ever happens? (25) The overwhelmingly vast swarm of criminal defendants forces the use of plea bargaining to cope with the tremendous volume of cases. (26) Further, the lack of a sufficient investigation of the facts and the opportunity to present evidence makes it even more difficult to fairly determine the defendant's fate at the plea-bargaining stage. (27) Also, the absence of the safeguards present at trial makes it easy to coerce a defendant into accepting a plea bargain "because of the threat of much harsher penalties after trial." (28) This calls into question whether a plea agreed to by a defendant was truly made voluntarily...