Honesty and opacity in charge bargains.

• Author: Wright, Ronald
• Position: Response to article by Gerard Lunch in this issue, p. 1399

Judge Gerard Lynch has helped legal scholars recognize what observers in the trenches have known for years: American criminal justice systems have become administrative systems mn by executive-branch officials (namely, prosecutors). (1) In these administrative criminal justice systems, judges serve as mere functionaries, only occasionally supervising the determination of guilt, and maintaining a somewhat larger voice at sentencing. We are therefore deeply grateful that Judge Lynch, who knows the centrality of the prosecutor in criminal "adjudication," (2) responded to our Screening/Bargaining Tradeoff hypothesis. (3)

For Judge Lynch, the kind of aggressive prosecutorial screening we propose and then explore at work in the New Orleans District Attorney's Office amounts to a "refinement" rather than an "alternative" to the dominant administrative criminal process. (4) He supports "careful screening of cases to eliminate unrealistic charges"; (5) but Judge Lynch parts with the next crucial step of the Screening/Bargaining Tradeoff, which aims to reduce the number of charge bargains (that is, cases settled through reductions of initial charges). He doubts that such restrictions on charge bargains are a good thing. When faced with a choice between an administrative system that stresses screening and suppresses later bargaining, and an administrative system that emphasizes bargaining, Lynch favors the latter.

In Judge Lynch's view, plea negotiations are the criminal process of adjudication, where defense attorneys contest facts and evidence and where prosecutors respond with reasoned judgments, including charge reductions. Bargaining is necessary to allow any meaningful input from defense attorneys during plea negotiations. Without bargaining, prosecutorial choices go unchallenged and uninformed by defendants and their lawyers.

We part ways with Judge Lynch on both the virtues of charge bargaining and the power of defense counsel to add value during those negotiations. We believe that pervasive harm stems from charge bargains due to their special lack of transparency. Charge bargains, even more than sentencing concessions, make it difficult after the fact to sort out good bargains from bad in an accurate or systematic way. We do not believe that active participation by even the best defense counsel can solve this problem. Further, we believe that Lynch's image of defense participation is impossible to align with the experience in most state and local jurisdictions, including New Orleans. The image may even be hard to align with the relatively wealthy federal system of criminal justice.

It matters a great deal which administrative system of criminal justice one chooses. Prosecutors have every reason to want a system that depends on negotiations for reduced charges. Such a system leaves prosecutors with overwhelming authority and discretion, and gives the public little opportunity to monitor the quality of the end product. When a prosecutor chooses to adopt a system that limits discretion and that allows greater public scrutiny of office decisionmaking, as the New Orleans District Attorney has done, it is reason to cheer. It is time for more prosecutors to step out from behind the curtain, and operate the administrative justice machine in the open.

1. TRANSPARENCY AND CHARGE BARGAINS

   Judge Lynch observes, "It is unclear just what is wrong with reductions in charges...." (6) Our reply centers on transparency, one of the greatest challenges to the administrative criminal justice process. Because the disputed facts are not presented in open court (or in any public forum), the quality of a criminal conviction in an administrative system is difficult to judge. Only by improving transparency can we address the underlying concerns, such as convicting innocent defendants or providing prosecutors with such complete control over outcomes that defendants retain no realistic access to judges, trials, or trial rights.

   The current administrative criminal process is highly opaque. In a world with few trials, it is rare for the victims and public observers to hear the full story behind the charges. For cases resolved without trial, the moment of greatest transparency occurs when prosecutors file their initial charges. At this point, the public, the defendant, and the prosecutor should believe that the charges reflect the government's reasoned judgment about what the defendant has done, and what social labels and consequences should attach. (7)

   But when the initial charge shifts, after nonpublic negotiations, the worth of the case becomes cloudy. And when shifting charges become the norm, it is impossible to scrutinize the changing charges to determine if they match the facts or fit with external (and public) conceptions of justice. The machine has too many moving parts to monitor them all.

   This transparency issue is a minor one for Lynch, who claims that the public should understand that the "discounted" price is no real bargain, and that the reduction is justified because it produces a more certain payoff for both the prosecution and the public. However, we do not think the problem with charge bargains is that defendants receive excessively lenient sentences. A sound administrative criminal process can coexist with either a severe or a modest penalty scheme. The goals of a sound administrative criminal justice system should be relatively modest penalty differentials that do not unduly burden trial rights, and relatively similar treatment of similar offenders.

   The system of...