Designing plea bargaining from the ground up: accuracy and fairness without trials as backstops.

Author:Bibas, Stephanos
Position:Plea Bargaining Regulation: The Next Criminal Procedure Frontier


American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants' lack of information and understanding, laymen's lack of voice, and the public's lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just.

TABLE OF CONTENTS INTRODUCTION I. ENSURING FACTUALLY, LEGALLY, AND MORALLY ACCURATE PLEAS A. Sources of Inaccuracy 1. Factual and Legal Inaccuracy 2. Normative Inaccuracy B. Promoting Accuracy Early On 1. Inquisitorial Measures 2. More Vigorous Defense 3. Better Normative Evaluation II. FAIRNESS: IMPROVING UNDERSTANDING, TRANSPARENCY, AND PARTICIPATION A. Sources of Unfairness 1. Defendants' Lack of Information 2. Defendants' Lack of Understanding 3. Laymen's Lack of Voice 4. Opaque, Insular Criminal Justice B. Reforms / Solutions 1. Better-Informed Pleas 2. Procedural Justice CONCLUSION Because ours "is for the most part a system of pleas, not a system of trials," it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.... "[P]lea bargaining ... is not some adjunct to the criminal justice system; it is the criminal justice system."

--Justice Anthony Kennedy, Missouri v. Frye (1)


American criminal justice is badly misshapen. Over the centuries, Anglo-American jurists have constructed elaborate procedural safeguards around grand and petit juries. (2) Juries, and especially jury trials, were supposed to ensure fair process, accurate outcomes, and checks on abuse of power. (3) Thus, judges felt little pressure to superintend evidence gathering or assess each side's stories before or at trial. (4) Our legal system put its faith in adversarial proceedings that culminated in vigorously fought trials, at which the collision of truth and error would ensure that factual, legal, and moral justice won out.

While the shell of an adversarial system remains, the core has been hollowed out. Plea bargaining began as a way for a few indisputably guilty defendants to resolve their cases quickly, saving everyone the time and expense of getting to a foreordained conclusion. (5) But the exception has swallowed the rule. Today, roughly 94 percent of adjudicated felony defendants plead guilty; only about 4 percent enjoy jury trials, and the rest have bench trials. (6) In misdemeanor cases, the disparity is even starker, with 99 percent or more pleading guilty. (7) Though petit juries are not quite extinct, they are an endangered species. To use John Langbein's example, petit juries are about as representative of New York's criminal courts as the hippopotamus in the Bronx Zoo is representative of New York City's wildlife--curious, anomalous spectacles. (8)

This plea-bargaining system was not planned, but jury-rigged. It grew up below the radar as a workaround that served all the insiders' interests. (9) Because it was supposed to be exceptional, no one bothered to build many safeguards into the process. (10) The few safeguards that exist are largely designed to ensure the centrality of jury trials. For example, at plea colloquies, judges typically dwell at length on each of the many trial rights that a defendant is giving up. (11) They say much less about the likely penalties, may require only a bare-bones allocution of factual and legal guilt, and do not have to speculate about the odds of conviction or the collateral consequences. (12)

Even as plea bargaining burgeoned, jury trials continued to matter for two important reasons. First, almost everyone trusted that trials remained as safety valves whenever guilt was in real doubt. The vast majority of defendants are factually and legally guilty, but surely, we assumed, those who are innocent would persist to vindicate their names at trial. (13) But the recent wave of DNA exonerations has revealed many guilty-plea convictions of defendants who are factually innocent. (14) Though perhaps hard to believe, innocent people sometimes buckle under the overwhelming pressures and incentives to plead guilty. (15) If completely innocent people sometimes plead guilty, there must be many more people with plausible factual, legal, or equitable defenses who are pleading too, as well as those who may be guilty of lesser offenses or may merit lower punishments.

Second, observers generally assumed that plea bargaining occurred in the shadow of trial. That is, they assumed that jury trials exerted an outsized influence because plea bargaining both rationally forecasted the probability of conviction and likely sentence and resulted in deals proportionate to those rational expectations. (16) But my other scholarship has called into doubt both how representative the universe of tried cases is and how rational the bargaining process is. The lawyers' incentives, the limits on discovery, the pressures of pretrial detention, and the heuristics and biases that afflict decision making all warp the bargaining process and outcomes. (17)

When the Supreme Court formally blessed plea bargaining four decades ago, it did so on the key assumption that defense counsel would vigorously vindicate innocent clients. (18) But defense lawyers are often shockingly overworked, shamefully underfunded, and sometimes incompetent. (19) They have little ability to mount independent investigations and vigorous defenses, leaving the outcome to ride on the quality of police work. (20) Police, however, may jump to conclusions, focus in on one suspect too quickly, and not thoroughly investigate alibis and leads that might point to other culprits. (21)

In addition, bad defense lawyering, coupled with mystifying procedures and strong pressures to plead quickly, can make it hard for defendants to choose intelligently among the alternatives before them and understand the likely convictions, sentences, and consequences that would flow from each one. (22) The trial will never come, and even the plea colloquy may be too late. New safeguards need to be built in earlier to ensure that the investigation, negotiation, and consideration of pleas is done correctly up front.

Lamenting the death of jury trials is a bit like complaining about the weather. A cottage industry criticizes their demise, but mere mortals are incapable of resurrecting them from the dead. Instead, it is time to design a plea-bargaining system from the ground up and then put some of those ideas into practice.

The core goals of a criminal procedural system should be accuracy and fairness. The investigatory, bargaining, and advising processes should be (re)designed to ensure the factual, legal, and moral accuracy of the resulting convictions, sentences, and collateral consequences. Fairness requires that defendants have the knowledge and freedom needed to make intelligent choices among alternatives. It also means that defendants, victims, and other participants must have meaningful opportunities to be heard and that they receive fair, respectful treatment along the way.

A system designed from scratch would rely little, if at all, on adversarial trials that would probably never come, let alone on appeals and collateral attacks that would come much too late and require second-guessing low-visibility, off-the-record decisions. Instead, it would build in some quasi-inquisitorial process early on, include adversarial participation early enough to make a difference, and incorporate several types of meaningful screening. It is far more important and effective to get things right the first time than to spend years trying to reconstruct how things might have gone differently.

The remainder of this Symposium Article comprises two parts. Part I looks at how to design a more accurate plea-bargaining system. Limited information, the psychology of investigations, and constricted defense participation can make pleas factually inaccurate. And now that grand juries are meaningless and plea judges are largely passive, no system actor ensures that charges are equitable and fitting. Solutions could include making the investigative process more inquisitorial, giving defense lawyers greater roles and more information earlier on, loosening bail rules, and ensuring more rigorous, neutral screening.

Part II turns to promoting plea bargaining's fairness. Defendants understand little of what they are getting into and have little opportunity to speak and be heard. The same is true of victims and affected locals. Solutions ought to include providing better information and de-biasing about odds and likely outcomes in advance of pleas. Reforms could even include preparing presentence reports in advance of pleas to serious crimes. Lay participants should have greater opportunities to speak, and proceedings should be more public and transparent to foster oversight and public scrutiny.


    In recent years, the rise in DNA exonerations (23) has painfully exposed the shortcomings of criminal investigations and plea negotiations. Section A explores the psychological, structural, and other forces that hamper both those procedures and the weighing of the equities of bringing charges. Section B goes on to suggest a...

To continue reading