Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges--and in effect, the law--from any meaningful role.
This Article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of "exclusive" executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts--based on both common law and legislation--retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the "efficiency" of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.
TABLE OF CONTENTS INTRODUCTION I. LEGAL REGULATION AND JUDICIAL OVERSIGHT OF PROSECUTORIAL DISCRETION A. Exclusive Executive Authority and Separation of Powers B. History of Criminal Prosecution Authority C. Prosecutorial Power in the Federal System D. Prosecutorial Power in State Systems E. Conclusion II. REGULATION OF PROSECUTORS IN COMMON LAW SYSTEMS III. JUDICIAL REVIEW OF PROSECUTION DECISIONS IN ENGLAND IV. THE PRESUMPTION OF FAIRNESS IN UNREGULATED BARGAINING CONCLUSION INTRODUCTION
The pervasiveness of plea bargaining and the rarity of trials are familiar features of American criminal justice systems. For years the federal courts have achieved more than 95 percent of all convictions through guilty pleas, and in most state courts, the figures are in the same ballpark. (1) But the "triumph" of plea bargaining (in George Fisher's description) hardly distinguishes criminal adjudication in the United States from the practices of legal systems elsewhere. (2) Plea bargaining, or some comparable form of abbreviated, consent-based adjudication process, is widely and routinely relied upon in criminal justice systems worldwide as an alternative to trials. Even though negotiated settlements of criminal prosecutions fit much less comfortably in the civil law tradition than the common law tradition, (3) civil law jurisdictions have adopted their own variants of plea bargaining as well. (4)
Despite lamentations for the "vanishing trial" and criticisms of plea negotiation practices, the basic appeal of negotiated guilty pleas is easy to understand. Negotiated settlements are perfectly adequate and uncontroversial in many cases. Some defendants are quite willing to plead guilty. Oftentimes facts are relatively simple; evidence of guilt is comprehensive and unambiguous without trial; and the criminal charge does not call for normative assessments of "reasonable justification," "recklessness," or the like.
Originally, a core function of the common law trial was to gather evidence. After the early common law era in which jurors were expected to know many facts or investigate on their own, the trial became a means to produce evidence, such as witness testimony that sometimes even the parties had not previously heard. (5) The evidence-gathering function of trials is much less necessary today, for many reasons. New forms of evidence, such as audio and visual recordings and various kinds of forensic analysis, provide key evidence well before trial. Police have firsthand knowledge of many crimes, such as drug or weapon possession, and they often gather statements from witnesses and suspects. Moreover, many offenses--such as possession crimes--are defined in ways that are easy to prove.
Many criminal cases simply do not require a trial to determine what happened or what liability should follow from it. But it is not always easy to agree on which cases are clear from pretrial investigation sources and which are not.
In addition, even though national wealth--measured by per capita GDP--has never been higher, (6) there is a strong consensus that governments for the last half century or much longer cannot afford to fund criminal justice systems that adjudicate more than a small fraction of prosecutions through ordinary trials. (7) Legislators, prosecutors, and nearly everyone else share the U.S. Supreme Court's conclusion that "'plea bargaining' is an essential component of the administration of justice," without which "the States and the Federal Government would need to multiply by many times the number of judges and court facilities." (8) "[W]e accept plea bargaining because many believe that without it ... our system of criminal justice would grind to a halt." (9) The same view is now common in criminal justice systems outside the United States as well. (10) There are good reasons to be skeptical of this conventional wisdom, many of which I have offered elsewhere. (11) Nonetheless, contemporary demands on courts to adjudicate criminal charges exceed courts' capacity to do so through ordinary jury trial process.
These systemic developments cut across national boundaries and probably go a long way toward explaining why U.S. jurisdictions have much company in the routine practice of plea bargaining.
While plea bargaining is pervasive worldwide, U.S.-style bargaining rules are not. Under state and federal law, plea bargaining is, in effect, unregulated. To be sure, there is a body of law that governs plea bargaining. For example, prosecutors cannot use illicit pressures to coerce defendants into pleading guilty, and judges must ensure that defendants knowingly waive their trial rights and that any guilty plea has a "factual basis." (12) The law of plea bargaining, however, is much like the law of free markets, which is the source of its underlying logic and rationality. As is true for parties in the private market realm, parties in criminal litigation are free to negotiate and employ any tactics that ordinary criminal law does not prohibit. That means that prosecutors cannot perpetrate frauds or threaten physical harm, and the terms of agreements must be within existing criminal and sentencing laws. But as in the market realm, nearly anything else goes. In particular, prosecutors can act strategically and add charges solely if a defendant insists on trial, (13) and they can pressure defendants by leveraging circumstances such as limited defense resources, (14) pretrial detention that disrupts work and family obligations, or the threat of prosecution against family members if defendants refuse to plead guilty. (15)
In short, American plea bargaining is highly--probably uniquely--"deregulated." It is less regulated than comparable domains of executive branch enforcement authority, and probably less regulated than the criminal justice systems of other common law jurisdictions. In this Article, I explore reasons why...