Justice in plea bargaining.

• Author: Zacharias, Fred C.

INTRODUCTION

Plea bargaining occupies an ambivalent position in the criminal justice system. Most observers of the system subscribe to its practical benefits, but acknowledge that it is an imperfect method for dispensing justice.(1) The academic literature has consisted largely of attempts to provide a theoretical justification for plea bargaining(2) and, conversely, of calls for the system's abolition.(3)

This Article accepts plea bargaining as a given. It focuses on the ethical role of prosecutors who find, in particular cases, that the system is not operating in its expected fashion. Courts(4) and professional responsibility codes(5) impose on prosecutors an undefined obligation to "do justice."(6) In the trial context, that obligation is best understood in terms of the adversarial process.(7) The plea-bargaining stage, however, does not fit the adversarial model,(8) nor is its goal the same.(9) It is therefore unclear what duties, if any, prosecutors have to defendants involved in plea bargaining, or to the legal system, other than to believe that a defendant is guilty before accepting a plea.

Consider just one example:

A defense counsel acts ineffectively during pretrial representation

by failing to request discovery or exculpatory material.

The prosecutor knows that, ordinarily, he would have to produce

exculpatory material to the defense but also knows that

in this case defense counsel is unaware of the material.

The law of criminal discovery does not always require disclosure of helpful information prior to the defendant's plea.(10) The hypothetical prosecutor, if she(11) believes the defendant to be guilty,(12) could convince the defendant to accept a plea higher than he would accept if aware of the information--and higher than other, better-represented defendants would have to accept. Do, or should, the prosecutor's obligations to justice require her to take steps that might keep her from maximizing the defendant's punishment?

To resolve this issue, the prosecutor needs to be able to refer either to a theory of what just plea bargaining is all about or to a theory of how bargaining, in general, achieves appropriate results. Part I of this Article discusses negotiation in the civil context, analyzes whether traditional bargaining notions apply equally to criminal cases, and considers whether those notions obviate the need for special conduct by prosecutors in plea bargaining. Part I concludes that society's presumptive tolerance for civil pretrial settlements cannot extend to the criminal context.

Part II considers the dominant justifications for plea bargaining, identifies their premises, and attempts to identify a concept of justice that fits those justifications. Part III analyzes these different justifications using a series of hypothetical scenarios that might implicate the prosecutor's obligation to do justice. In part, examining how these justifications work in practice illustrates weaknesses--or lack of definition--in some of the rationales themselves. More importantly for this Article, however, the analysis suggests that just behavior by prosecutors depends, in a very concrete way, upon the theory under which they operate. Prosecutors cannot identify proper conduct unless they have a clear notion of what plea bargaining should accomplish.

Part IV thus offers a practical solution to the problem of doing justice. It argues that prosecution offices, in their internal guidelines or procedures, should set forth the plea-bargaining theory or theories that justify the offices' participation in the process.(13) In contrast to the status quo, that simple step would enable individual prosecutors to respond to specific plea-bargaining dilemmas and to make meaningful determinations of what constitutes justice in the individual case.

Even if prosecutorial agencies resist adopting a policy, individual prosecutors will be able to use this Article's analysis to deal with many of the dilemmas they face. In selecting a theory of plea bargaining, individual prosecutors would need to reflect on the goals they seek to achieve in plea bargaining. Part V concludes that society is better off when prosecutors are self-conscious about their ends, because such reflection helps prevent arbitrary behavior and renders prosecutors less subject to corruption or manipulation. At a minimum, identifying plea-bargaining priorities will encourage negotiating prosecutors to reason and act in an internally consistent way.(14)

1. DISTINGUISHING PRETRIAL SETTLEMENT IN CIVIL LITIGATION

   Most of the literature regarding negotiation in civil litigation tends to assume that pretrial settlements are good, or appropriate, results.(15) If one could make a similar, definitional assumption about criminal case settlements reached through plea bargaining, then the need to identify the meaning of plea-bargaining justice would disappear.

   In approving civil settlements, most commentators have pointed to the resource-saving nature of settlements, the anguish avoided, and the speed with which negotiated dispositions can be achieved.(16) These benefits, though real, do not alone explain a societal preference for settlement, because the same benefits could be achieved equally well by resolving disputes through a coin flip. Something about the quality of the resolution itself must justify society's preference.

   At its root, the substantive rationale for favoring civil settlements is probably identical to the rationale for upholding contracts.(17) Two parties can maximize their total utility in the use of their separate resources when they trade assets and services.(18) If each party has access to full information and can assess his own preferences, then contract law assumes that any agreement will make both parties better off.(19) A settlement is societally efficient, compared to the alternative of requiring each party to keep what they have; namely, their chance of winning at trial, with all attendant risks and benefits.(20) So long as both parties end up in relatively better positions, society does not care who got the better of the deal.(21)

   This economic model does not apply equally in the criminal setting for a variety of reasons. First, the model assumes, at a minimum, fully available information by both negotiating parties.(22) Civil contract theory has developed a substantial common law addressing the problems that exist when this assumption is not satisfied.(23) The criminal context, however, builds on the premise that information typically is not accessible.(24) In most jurisdictions, bilateral discovery is limited severely.(25) Each party dominates access to the witnesses who have information benefitting its side.(26) The theoretical framework of civil bargaining--however counterfactual it may be(27)--thus differs in its core premises from criminal plea bargaining.

   Second, the range of bargaining is limited in criminal prosecutions. In most civil cases, the parties can reach a settlement for any dollar amount between total victory and total capitulation. Pleas in criminal cases ordinarily represent an all or nothing choice between accepting guilt or establishing innocence.(28) A range of pleadable offenses and sentences may exist, but stigma and incarceration usually will result from any type of plea. One therefore cannot blithely assume that a middle ground exists somewhere in the spectrum of results that will make both the prosecution and defendant better off.

   A related factor distinguishing criminal negotiations from most civil negotiations is the difficulty of quantifying and comparing the benefits that the parties receive from a plea agreement.(29) The prosecutor is charged with achieving a result that satisfies society's sometimes conflicting desires for vengeance, deterrence, and fairness.(30) The defendant seeks to minimize incarceration, loss of reputation, and damage to his personal affairs. These factors cannot be measured in comparable units, so society may not be able to tell when a trade-off between the prosecutor's preferences and the defendant's preferences enhance total utility.(31) From a societal perspective, one cannot even assume that an increase in the defendant's utility is a good thing.(32)

   Finally, arguably, a plea bargain itself should not be conceptualized as a voluntary agreement, because of its coercive elements. Both the prosecution and plaintiffs in civil suits force defendants into bargaining by filing their lawsuits. Once civil litigation commences, however, adversarial theory assumes that the opposing litigants can inflict equal costs upon each other for proceeding to trial.(33) The prosecution, in contrast, can exercise coercion unilaterally for the purpose of encouraging a settlement; for example, by threatening lengthy pretrial detention(34) and interfering with the defendant's ability to earn his livelihood. The defendant can do nothing in response, other than to refuse a plea. Thus, in a limited sense,(35) plea bargaining is inherently unequal. Defendants may be forced to agree to a settlement reflecting something other than their evaluation of the objective benefits of pleading guilty. To be equivalent to the civil litigant's evaluation, the calculus would need to be based more on the defendant's risk averseness and his assessment of the chances at trial.(36)

   These observations are not intended to suggest that plea bargaining is inappropriate. They instead suggest simply that one cannot make the same assumption of appropriateness that typically is made regarding civil settlements. The fact that the parties have reached an agreement does not mean presumptively that a settlement is a good thing. To accept plea bargaining as achieving just results, one either must modify the contract theory or identify other rationales for the negotiating process. Part II of this Article discusses some of the other possible justifications, as well as a rationale for plea bargaining that builds upon the...