ABSTRACT. Police officers play an important, though little-understood, role in plea bargaining. This Essay examines the many ways in which prosecutors and police officers consult, collaborate, and clash with each other over plea bargaining. Using original interviews with criminal justice officials from around the country, this Essay explores the mechanisms of police involvement in plea negotiations and the implications of this involvement for both plea bargaining and policing. Ultimately, police influence in the arena of plea bargaining--long thought the exclusive domain of prosecutors--calls into question basic assumptions about who controls the prosecution team.
AUTHOR. Fellow, Stanford Constitutional Law Center. I am grateful to Kim Jackson and her colleagues at the Yale Law Journal for their invaluable suggestions. I also want to thank colleagues, friends, and family who read drafts and talked through the issues with me. A short list includes Liora Abel, Greg Ablavsky, Stephanos Bibas, Jack Chin, Barbara Fried, Colleen Honigsberg, Cathy Hwang, Shira Levine, Michael McConnell, Sonia Moss, Howard Shneider, Robert Weisberg, and the riders of A.C. Transit's "O" Bus.
ESSAY CONTENTS INTRODUCTION 1732 I. THE SEPARATION OF POWERS WITHIN THE PROSECUTION TEAM 1735 A. Academic Accounts 1736 1. Scholarship on the Police Role in Plea Bargaining 1737 2. Scholarship on the Separation of Powers in Plea Bargaining 1741 B. Prosecutor and Police Accounts of the Separation of Powers in Plea Bargaining 1743 II. POLICE INFLUENCE ON PLEA BARGAINING 1748 A. Formal Systems of Police Influence 1748 B. Informal Police Influence on Plea Bargaining 1754 1. Factors Leading to Police Involvement in Plea Bargaining 1755 2. Special Cases Where Police Plea Involvement Is Heightened 1759 C. Police Influence in the Face of Prosecutorial Resistance 1761 1. Police Brass and Police Unions 1762 2. Media 1764 3. Judges 1767 III. IMPLICATIONS OF POLICE INVOLVEMENT IN PLEA BARGAINING 1769 A. The Effect on Plea Bargaining 1769 1. Bad Arrests Become Bad Pleas 1770 2. Brady, Giglio, and Civil Rights Litigation 1771 3. The "Market Price" of a Guilty Plea 1773 B. The Effect on Policing 1777 C. The Effect on the Literature 1782 CONCLUSION 1784 INTRODUCTION
From the opening credits of Law & Order to the pages of the United States Reports--and in many other sources in between--descriptions of the prosecution team divide its functions into two parts. Police officers patrol the streets, investigate cases, and make arrests. Prosecutors handle the adjudication--dismissing charges, negotiating pleas, and taking cases to trial. In this traditional dichotomy, the police are not involved in the plea bargaining between prosecutor and defense counsel, the most common means by which cases are disposed. Officers' lack of involvement in plea bargaining seems to coincide with a more general intuition that executive officials, such as police officers, ought not take part in judicial functions, like deciding upon guilt and punishment, which plea bargaining essentially does. This embrace of separation of powers is not a mere academic or ethical construct. It describes the way many officers and prosecutors think of their respective roles in the criminal justice system--a system in which ninety to ninety-five percent of cases are disposed of by plea. (1) The separation of powers in plea bargaining, as one prosecutor put it, is "an important bulwark against overreaching by police." (2)
Nonetheless, the power to arrest and the power to decide on guilt and punishment are far less separate in practice than they first appear, and police officers in jurisdictions around the country are actively involved in plea bargaining. This Essay illustrates how officers have found ways to influence plea bargaining, both with and without prosecutorial approval. In some jurisdictions, police play a formal role in the negotiations, meeting with the prosecution and discussing what pleas should be offered. In other jurisdictions, prosecutors insist that police not be involved at all, lest their involvement compromise the prosecutor's independent review of the arrest and investigative work done by the police. In still other jurisdictions, no formal policy exists regarding police influence, so prosecutors and police officers consult in an ad hoc manner about pleas. Officers around the country have even found ways to influence plea negotiations in the face of opposition from prosecutors. The very fact that they play any role at all in the plea process challenges the way we think about the balance of power and the internal politics of the prosecution team.
The issue of police influence on pleas is part of a larger question about how officers and prosecutors ought to work together. Not surprisingly, this larger question has generated much controversy among prosecutors and police, as the two halves of the team struggle to define whether they should stay in their own lanes--investigation for police, adjudication for prosecutors--to avoid friction, or whether the friction is a productive feature of institutional design that prevents either side from overreaching its authority. Involve police in plea bargaining? Keep them at arm's length? These are the poles of a debate for which there are no definitive policy prescriptions, despite the implications for plea bargaining and policing--implications that call into question basic aspects of how we think about the working group of prosecutors and police, commonly known as the "prosecution team." Despite its significance, the plea-bargaining clashes and cooperation within the prosecution team have received little attention from scholars, legislators, or judges. The legislature and judiciary have provided no guidelines on how prosecutors and police officers should interact on plea negotiations, so prosecutors and officers around the country remain free to fashion any arrangement they see fit.
The lack of academic and judicial attention to police influence on pleas may be a function of the low visibility of plea bargaining itself. Pleas do not produce the pageantry and fanfare of trials. Although nearly all criminal cases are resolved through pleas, the actual negotiations that take place are not easily observed because they occur behind the scenes. What back-and-forth prosecutors and police have about plea bargaining is all the more veiled because of the premium the prosecution team places on presenting a unified front to the public. For these and other reasons, police involvement in plea bargaining has flown beneath the radar, despite its implications for both plea bargaining and policing.
This Essay addresses the gap in the existing literature by describing the mechanics and implications of police influence on plea bargaining. Using interviews with prosecutors, police officers, and other criminal justice officials, this Essay provides a novel account of how police navigate the plea-bargaining system. It also lays out implications, desirable and undesirable, that flow from police involvement in plea negotiations.
There are numerous implications for the plea-bargaining process. For example, if officers have more influence on pleas, bad arrests may more easily become bad convictions. Officer influence may also shift the "market price" for certain plea bargains, if prosecutors and officers have systematically different views of what a charge is worth or of the importance of resolving the case without trial. The involvement of officers in the negotiations might also change the way defense attorneys bargain.
There are likely a number of effects on policing, as well. The obvious risk of increasing police involvement is that it allows officers to increase the considerable discretion they already exercise by extending that discretion from the street into the courtroom. But there are potential benefits, too. Involving officers in plea bargaining may reduce on-the-street abuses if it gives officers more of a stake in building cases that are worthy of court. Some of the most harassing police conduct occurs when officers act knowing full well--but not caring--that the illegal stop, search, seizure, or use of force will scuttle any future court case. The exclusionary remedies that are supposed to deter these Fourth and Fifth Amendment violations, however, only matter if officers are invested in what happens to their cases.
In addition to its practical implications, police involvement in plea bargaining also poses a challenge to the current academic accounts of plea bargaining and the prosecution team. In recent years, the prosecutor has increasingly been described as the dominant figure in the criminal justice system, in large part because of his dominion over plea bargaining. This Essay's account of police involvement in plea bargaining challenges that view. It also complicates the growing literature about the need to separate executive and judicial functions within the prosecutor's office, for such discussion of separation of powers never considers the ways in which police involvement in plea bargaining destabilizes the attempts of prosecutors' offices to balance their executive and judicial functions.
In a system where juries and judges decided cases, police influence on prosecutors' plea decisions would not be so important. Juries and judges would have the final say over guilt and punishment. But in our system of ubiquitous pleas, no neutral third party reviews the prosecution team's decisions about what plea to offer, and these offers essentially determine the defendant's guilt and punishment. The influence officers have on this process matters precisely because it will not be checked by any outside force. For this reason, it is critical to understand the various systems and normative implications of police influence on plea bargaining. Indeed, the need to understand this influence is all the more pressing because, in the present system, the influence...