Screening versus plea bargaining: exactly what are we trading off?

• Author: Lynch, Gerard E.
• Position: Response to article by Ronald Wright and Marc Miller, Stanford Law Review, vol. 55, p. 29, 2002

I was delighted to be invited to comment on Ronald Wright and Marc Miller's important and instructive article, The Screening/Bargaining Tradeoff. (1) Those familiar with the authors' work, including their original and fascinating criminal procedure casebook, will be unsurprised by many of the article's virtues, including a focus on empirical examination of real-world practice and (perhaps a special case of that more general virtue) attention to practices at the state and local level, where most criminal law enforcement actually occurs. (2) Wright and Miller develop some interesting insights into the potential for changes in plea bargaining practices that have frequently been treated as inevitable, and they do so, characteristically, through a close examination of actual practice in a particular district attorney's office. Their provocative article deserves, and will surely receive, a wide and appreciative readership.

The article argues that plea bargaining can be greatly reduced, or even eliminated, without increasing the number of trials to an unmanageable level, by significantly increasing the prosecutorial screening function. The authors point to a careful review of the experience in New Orleans, where the District Attorney has instituted just such a policy, as proof that it can be done. They proclaim that we have missed the point, over the years, by perceiving plea bargaining as a tradeoff against trials, and that we can avoid trials without resorting to plea bargaining by adopting aggressive prosecutorial screening.

Coming from a federal background in which intake is traditionally a more discretionary function than is typical of prosecutors' offices without the luxury of limited jurisdiction, I certainly agree with the authors that careful screening of cases to eliminate unrealistic charges is desirable. And I have no quarrel with the authors' impressive demonstration that a policy that emphasizes such screening will reduce the need for further charge reductions as part of a plea bargaining process.

But I have a different perspective on the significance of the authors' findings, which goes to the heart of their claim that aggressive prosecutorial screening of cases at the intake or precharge stage represents a significant alternative to the plea bargaining system as it currently operates in most places. In my view, aggressive screening is more accurately characterized as a refinement of the essential features of the current plea bargaining system. I doubt that the authors are correct to dismiss the traditional idea that the present plea bargaining system is properly seen in opposition to a system of trials. Our differences probably derive from different senses of what plea bargaining is and what, if anything, is problematic about it.

In questioning "the traditional plea bargaining/trial tradeoff," and seeking to replace it with a model in which the proper tradeoff is seen as one between plea bargaining and prosecutorial screening, Wright and Miller rather tellingly start with plea bargaining as the baseline system, and ask which of their two alternatives, trials or screening, can best serve as a viable substitute for it. The question seems to be: Can we eliminate plea bargaining without incurring the burden and expense of a vastly increased trial docket? Putting aside for the moment other questions about this formulation, it is readily apparent that asking the question in this way avoids the real reason that plea bargaining is traditionally seen as in opposition to trials: It is the trial that is the official baseline system, proclaimed in the Constitution, in all state and federal variations of criminal procedure rules, and in the popular imagination as educated in civics classes and entertained by American media. A system of disposition by guilty plea, whether or not it is properly called plea bargaining, and whether or not it includes aggressive prosecutorial intake screening, stands as a clear alternative to the official adversarial jury-trial model of criminal procedure.

Thus, there is a tradeoff between plea bargaining and trials, not merely in the practical sense that (as some have argued and as Wright and Miller dispute) we might not be able to reduce plea bargaining without increasing the number of trials, but in the deeper sense that plea bargaining (and variant systems of agreed disposition) exists in the first place as an alternative to the expense and uncertainty of trials. It is in this sense that I would argue that plea bargaining is best seen as an alternative to a trial system, and that the screening system that appears to operate in New Orleans is simply a variant or refinement of a system of disposition in which the prosecutor, rather than a judge or jury, is the principal adjudicator of guilt and punishment, and the defendant's role is to acquiesce in that determination, rather than to contest it before a neutral adjudicator. For those who object to the current system of negotiated dispositions because it replaces the public assessment of evidence by lay adjudicators with a less transparent resolution by professional executive-branch law-enforcement officials, the New Orleans system of increased screening and decreased bargaining hardly seems like an improvement.

In what sense, then, does the screening system eliminate the defects of a plea bargaining regime? Wright and Miller seem to focus on bargaining as the key negative characteristic of adjudication by guilty plea. This is evident in their emphasis on features of the New Orleans system that limit postindictment reductions in charges. Their emphasis, in other words, is on the value of screening in reducing not the number of cases in which the defendant pleads guilty, but the number of cases in which defendants plead to lesser charges than those originally filed.

It is unclear just what is wrong with such reductions in charges, though the assumption that they are undesirable is widespread. "Plea bargaining" is a loaded term, which appears to imply both substantive and procedural irregularity. Substantively, it suggests that...