Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted substantive and procedural premises of American criminal justice: Plea bargaining routinely results in punishment disproportionate to desert, and guilty pleas are an insult to procedural due process. This Article argues that the only way to align plea bargaining with our criminal justice premises is to change those premises. It imagines a system in which retribution is no longer the lodestar of punishment, and in which party-control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution--as in the salad days of indeterminate sentencing--and if it were filtered through a system that is inquisitorial (that is, judicially-monitored) rather than run by the adversaries, it would have a greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.
TABLE OF CONTENTS INTRODUCTION I. PLEA BARGAINING TODAY A. Plea Bargaining and Desert B. Plea Bargaining and Due Process II. PLEA BARGAINING REIMAGINED A. Plea Bargaining and Preventive Justice B. Plea Bargaining and Inquisitorialism III. OBJECTIONS A. Constitutional Objections B. Accuracy Objections C. Implementation Objections CONCLUSION INTRODUCTION
Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice. The practice of negotiating an admission of guilt in exchange for a lowered charge or sentence cannot be reconciled with either a retributively-based criminal law or an open, confrontational procedure. It inevitably results in sentences or the threat of sentences that are disproportionate to desert, using a process that ignores the panoply of constitutional rights that are viewed as the linchpin of American justice. (1)
In light of this country's high crime rates and the expense of its trials, plea bargaining may be a necessary institution. (2) But if so, it would ideally function in a manner that is as congruent as possible with the criminal justice system's goals. Unfortunately, restructuring plea bargaining so that it better fits the retributive and adversarial tenets of American criminal justice is impossible. Defendants will not agree to a plea offer unless they can be assured the resulting sentence will be less harsh than what they would receive after conviction at trial, a dynamic that seriously undermines the retributive notion that there is a single "just" punishment for every offender; rather, there are at least two, often wildly disparate, possible punishments in plea-bargained cases. And prosecutors will not offer a plea that does not include, as a condition, that the defendant waive virtually all adjudicatory rights and agree to a verdict delivered at a pro forma hearing that is a far cry from the classic adversarial trial. (3) Plea bargaining as practiced today encourages the parties to adopt positions that are antithetical to the most important goals of the system.
This Article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system in which retribution is no longer the lodestar of criminal punishment, and in which party control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution--as in the salad days of indeterminate sentencing--and if it were filtered through a system that is inquisitorial (that is, judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results. Plea bargaining would become disposition bargaining, in which the defendant would agree to participate in a structured risk management program in exchange for a suspended sentence, a specific sentence length, more time spent in community alternatives to prison, or certain prison conditions. At the same time, all defendants--not just those who refuse to plea bargain--would go to trial, because an inquisitorial system does not permit guilty pleas. While such a system would require the prosecution to prove its case to a judge with respect to both guilt and punishment, it could still promote efficiency through dispositional bargains that encourage defendants to admit their criminal conduct and to give up their right to a jury
Implementing this regime would require a reorientation of the criminal justice system. But, as a substantive matter, this reoriented system would not be significantly different from what now occurs in this country through diversion programs and specialized fora, such as drugs courts and, as a procedural matter, it would be very similar to the process found in several European countries. Part I explains why plea bargaining does not fit well with the current system, either substantively or procedurally. Part II elaborates how plea bargaining would work in a prevention-oriented, inquisitorial regime, using examples from both the United States and Europe. Finally, Part III responds to some of the theoretical and practical objections to this approach.
PLEA BARGAINING TODAY
As Justice Kennedy stated in Lafler v. Cooper, "criminal justice today is for the most part a system of pleas, not a system of trials." (4) Whether excusable or not, that development is understandable. The huge increase in criminal cases since the 1960s, (5) combined with the expense, in both time and money, of full-blown jury trials, has made plea bargaining the primary engine of American criminal justice, (6) the mechanism for resolving over 95 percent of all criminal cases. (7) Unfortunately, that engine pushes the system down a different track than the one our preeminent substantive and procedural traditions would seem to dictate.
Plea Bargaining and Desert
The substantive goals of the American criminal justice system are multifold: retribution, deterrence, incapacitation, and rehabilitation are the usual objectives given. But for the past forty years or so, the predominant goal has been retribution. (8) Deterrence and other forms of prevention are important, but legislators, either following or leading the public, have made giving offenders what they deserve their top punishment priority, (9) and many scholars have jumped on the retributive bandwagon. (10) Some have even argued that blameworthiness, as determined by the general population, should usually be the only punishment consideration, on the assumption that crime prevention goals can often be achieved through sentences based on desert. (11)
Unfortunately for this point of view, plea bargaining regularly results in disproportionate punishments. (12) Plea bargaining creates a fundamental problem for retributivism because, for bargaining to work, there must be a significant divergence between the sentence that results from a plea and the sentence that results from trial. (13) Perhaps the sentence proffered by the bargaining prosecutor is retributively appropriate, perhaps the sentence that can be imposed at trial is, or perhaps neither is. The important point is that, at best, only one of these sentences can reflect a defendant's true desert. While most retributivists are willing to contemplate a sentencing range for a given crime, those sentencing variations are meant to recognize that different offenders charged with the same crime might warrant different punishments, not that the same offender can receive divergent sentences. (14)
To facilitate bargaining, some retributivists might be willing to countenance a small differential between the plea and trial sentence. But in practice that option is rarely available, apparently because a greater differential is needed to encourage guilty pleas. (15) It is well documented that the trial penalty can be three to four times the plea bargain deal (in Lafler, for instance, the plea offer/ trial differential was more than 350 percent (16)), and it rarely falls below a 15 percent increase. (17) Even under the federal sentencing guidelines--a regime that requires prosecutors to adhere to a narrow retributive range for a particular crime--the formal discount for a guilty plea is substantial (25 to 35 percent), and presumably well beyond what even a flexible retributivist would permit. (18)
As a result, bargaining practices routinely make a joke out of the conceit that our system is founded on desert. Take the most famous case in this regard, Bordenkircher v. Hayes. (19) There, the prosecution told Paul Hayes, charged with his third offense (a forgery), that if he did not plead guilty and accept a five-year sentence, then he faced trial under a three-strikes statute that required life in prison upon conviction; Hayes refused the deal, was convicted, and was sentenced to life. (20) Most would agree that the life sentence was disproportionate to Hayes's crimes; indeed, one can make a plausible argument that even the five-year sentence offered by the prosecution was disproportionate, especially if the focus is solely on the forgery. But the important point is not that the legislature may have ignored retributive ideals in authorizing these sentences. It is that, rather than pursue the just disposition, whatever it may be, the institution of plea bargaining requires prosecutors to be willing to seek two entirely different sentences, at least one of which will be disproportionate to the defendant's culpability.
Usually, of course, defendants like Hayes take the deal, sometimes because it provides more certainty, but most often because it is simply too good to turn down. As Federal District Court Judge Jed Rakoff recently...