Plea bargaining's baselines.

• Author: Bowers, Josh
• Position: III. Some Tentative Thoughts on a Jurisprudence of Proportionality through Conclusion, with footnotes, p. 1113-1145 - Plea Bargaining Regulation: The Next Criminal Procedure Frontier

3. SOME TENTATIVE THOUGHTS ON A JURISPRUDENCE OF PROPORTIONALITY

   I do not mean to overstate the degree to which the Court has reconceptualized proportionality as permissibility. As I mentioned, it has done so by implication only. The issue in Lafler and Frye was only whether the defense attorney had fought hard enough for a fair enough bargain. The issue was not coercion, much less proportionality's relationship to it. Nor do I expect the Court to revisit the question any time soon. (171)

   Before presenting a prescription for this issue, I first emphasize briefly--and at the risk of overkill--why I believe a proportionality baseline is prudent, at least as a supplement to the conventional legalistic baseline.

   1. Legality All the Way Down

      I have devoted considerable space in other articles and essays to cataloguing the criminal justice system's exceptional--almost anachronistic--fidelity to the principle of legality. (172) This fidelity results in a fervent, systemic affinity for bright-line rules. (173)

      Bright-line rules have their place, but, as I have argued elsewhere, we may have gone too far. (174) The pendulum has swung radically from a historically unstructured approach to criminal law and procedure to a rigid formalism. (175) It is a formalism that does more to empower police and prosecutors than to constrain them. Our bright-line rules end up describing safe harbors within which police and prosecutors exercise tremendous discretion over whether and when to act, and against whom. (176) In this way, the prevailing conception of legality has failed in its principal objective, which is to minimize arbitrary exercises of state power. (177)

      But what do these bright-line rules have to do with the practice of plea bargaining? Discretion is desirable but dangerous. We pretend to deny it, but we cannot do without it. (178) Thus, we adopt hard rules that operate not to eliminate discretion, but merely to shunt its exercise underground and into the hands of the system's least transparent and accountable institutional actors. For instance, determinate sentencing laws, like habitual-offender laws and other mandatory-minimum statutes, serve to strip judges of sentencing discretion only by delivering it to prosecutors at the point of charge and bargain. (179)

      But there is much more going on than just that. Because legislators have powerful incentives to overcriminalizer, and the Court, as I explained, has done very little to limit the reach and severity of criminal codes, police and prosecutors have no shortage of prospective charges with which to arrest and charge. (180) In such a world, legal guilt becomes less important than normative guilt. Between four legally guilty offenders, one is set free, another charged with a misdemeanor, a third with a felony, and a fourth with a third strike, which, upon conviction, mandates a life sentence. And between four other legally guilty offenders, each of whom is allowed to plead out from under third strikes, one gets two years in prison, another five, a third goes away for ten, and a fourth receives twenty-five. In these examples, the prosecutor's charging and bargaining decisions are monumentally important, but they have very little to do with legal guilt. The prosecutor may justify the consequent sentencing differences as appropriate exercises of what I have called equitable discretion. (181) But, critically, she is not required to justify the differences in the first instance because, pursuant to prevailing constitutional doctrine, she exercises almost "sovereign prerogative" over these determinations of normative guilt. (182)

      As I suggested already, equitable discretion is defensible--indeed, necessary. (183) But there are strong reasons to question whether the prosecutor may exercise it effectively or fairly. (184) It is not that she lacks moral sense, but only that her charging and bargaining decisions are clouded by institutional and cognitive biases of a kind that do not affect other stakeholders. (185) What the system lacks, and what it desperately needs, are equitable checks on a prosecutor's normative authority--a set of checks with which other institutional actors would prevent prosecutors from exercising free reign within the safe harbors described by hard rules.

      For present purposes, we may recast the debate in terms of permissibility. The current systemic approach to legality generates a cramped conception of permissibility defined as technical guilt accuracy only. First, courts do not ask whether criminal codes are too expansive or harsh, but only whether statutes are precise enough. (186) In other words, precise enough criminal laws are permissible criminal laws. Second, courts do not ask whether arrests and charges--made and filed pursuant to these codes--are generally unreasonable, but only whether there is probable cause to believe that suspects and defendants are legally guilty of the offenses. (187) In other words, criminal charges supported by probable cause are permissible criminal charges. Third, courts do not ask whether plea bargains are genuinely coercive, but only whether, again, the underlying charges are permissible criminal charges. (188) In other words, permissible criminal charges generate permissible plea bargains. Fourth, courts do not ask whether negotiated sentences or, conversely, often mandatory trial sentences are disproportionate or otherwise unfair, but only whether the underlying convictions are based upon permissible guilty pleas or trial proof beyond a reasonable doubt. (189) That is, permissible plea bargains (or proof of legal guilt) produce permissible punishment.

      From start to finish, the criminal process is designed to punish legally guilty offenders without any consideration of whether, in a particular case, it ought to do so. The jurisprudential tie that binds all stages of the process is the same sterile, technocratic, and overplayed notion that the legality principle cannot be polluted by equitable oversight. Because we find the same thread winding through all stages, no stage operates independently of the others. That is, we cannot adequately consider the prosecutor's bargaining power without also considering bright-line criminalization, charge, trial, and sentencing rules.

      But, happily, because each interlocking stage influences the others, we are provided various opportunities for reform. An equitable "circuitbreaker" at one stage may do promising work at another. (190) For instance, I previously have prescribed two different types of equitable arrest and charging screens--one administered by judges and the other by grand juries. (191) With those in place, we might not also require aggressive regulation of the equities of plea bargains. But because those are not forthcoming, the need grows for a proportionality baseline, or at least something other than a coercion test grounded exclusively in legality. (192)

   2. A Proportionality Methodology

      I am not the first to envision a proportionality baseline. Most notably, Alan Wertheimer suggested that a prosecutor's plea proposal might be coercive when it threatens an obviously disproportionate trial sentence:

      [I]t may prove easier to think of B's moral baseline in terms of the requirements of justice rather than rights.... Whether it was a coercive proposal [on this reading]... depends on whether [the sentence] is an unjust sentence for the offense.... If it is an excessive punishment, the proposal was a threat, ((193)) It is all well and good to talk of "excessive punishment." The trick is to identify it. In truth, there is no definition, as I examined in the previous Section. My hope here is to demonstrate only that the judge is particularly well situated to inquire--or perhaps it is more accurate to say that the judge is well situated to share--in the practice by which the parties negotiate for proportional punishment. (194)

      At her disposal, the judge possesses not only the conventional tool of the common law method but also her experience with practice law. (195) She may use these analytic tools to do a bit of social science and a bit of moral philosophy--a methodology that may be said to lie at the midpoint between Paul Robinson's empirical desert and the moral philosopher's deontological desert. (196) That is, the judge may consider both descriptive and normative conceptions of proportionality--prevailing practice as well as moral conviction.

      I am more comfortable, however, with an alternative framing of the enterprise. In truth, a judge will never be willing or able to thoroughly consult social science or moral philosophy. She will make a softer study of things. Instead of engaging in rigorous empiricism or deontological analysis, she will reflect on her intuitions and her experience to discover what, in the ordinary course, tends and ought to occur. This jurisprudence may be better understood, then, as a light brand of virtue jurisprudence.

      What is virtue jurisprudence? A number of legal scholars and virtue ethicists--most notably Larry Solum--have developed a theory of decision making whereby the judge relies upon a combination of "[t]he intellectual virtues of theoretical and practical wisdom and the moral virtues of courage, temperance, and good temper" to achieve "excellence in judging." (197) This end goal is to recognize and express "the virtue of justice." (198) It is an objective that "requires legal vision," which, happily enough, judges possess more so than any other institutional actor. (199) Ultimately, the theory is introspective, particularistic, and practical. (200) The judge critically reflects upon her "situation sense" to consider all the circumstances. (201) In this way, she behaves similarly to any individual who pursues a "flourishing human life." (202) But whereas a layperson examines life and her choices about it based on her everyday experiences in the world, the judge examines law and her choices about it based on her everyday...