SECOND-BEST CRIMINAL JUSTICE.

• Author: Ortman, William

ABSTRACT

Criminal procedure reform can be understood as a "second-best" enterprise. The general theory of second best applies where an ingredient necessary for a "first-best" ordering is unattainable. That's an apt description of the contemporary criminal process. Our normative ideals of criminal justice require fair and frequent trials to judge guilt or innocence, but the criminal trial rate has been falling for at least a century; today it is vanishingly close to zero. What may be even worse is how we've eliminated trials--by endowing prosecutors with enough leverage to coerce guilty pleas. Excessive prosecutorial leverage is the source of some of criminal procedure's deepest pathologies.

This Article asks the reader to accept--as a thought experiment--that a negligible trial rate is a constraint on criminal procedure reform in the near term. From that starting point, the crucial question becomes whether there is a less destructive way to ensure a negligible trial rate. There is: inefficiency. The road to a more just, humane, and rational criminal process could begin with making formal criminal litigation more inefficient. In matters of institutional design, the general theory of the second best counsels using unseemly practices, like inefficient procedure, to offset fixed constraints, like the absence of criminal trials. If the formal process of criminal litigation could be made unreasonably expensive for both parties, both would want to settle to avoid it. Policymakers would then be free to dismantle the tools of prosecutorial leverage--overlapping offenses, draconian sentencing laws, punitive pre-trial detention, and more--without worrying about increasing the trial rate. The result would not achieve our criminal justice ideals--no second-best solution can--but it could be better than the status quo. Without more trials, it may be the best we can do.

Table of Contents INTRODUCTION I. THE TRIAL CONSTRAINT II. PLEA BARGAINING AND ITS DISCONTENTS A. Plea Bargaining Today B. The Debate 1. Plea Bargaining Defended 2. Plea Bargaining Attacked a. Coercing Defendants to Convict Themselves b. Suppressing Uncertainty III. THE TRIAL CONSTRAINT AND PLEA BARGAINING REFORM A. Making the Environment Less Coercive B. Injecting Adjudication C. Detecting Outliers IV. TOWARDS SECOND-BEST CRIMINAL PROCEDURE A. The General Theory of Second Best B. Second-Best Criminal Justice: The Civil Justice Model 1. The Basic Model 2. Approximating the Model C. Alternative Second Best: The Administrative Enforcement Model 1. Comparison to Status Quo 2. Comparison to the Civil Justice Model CONCLUSION INTRODUCTION

We have mourned the criminal trial for a long time. In 1928, Raymond Moley wrote in one of the first academic treatments of plea bargaining that the criminal trial was "vanishing." (1) In the nine decades since, countless writers have echoed Moley's observation. (2) The time has come to consider the possibility that the criminal trial is not dying, but, for practical purposes, dead.

If the criminal trial is dead, the question confronting criminal procedure reform becomes this: what's the best system we can have without trials? The economists have a term for this scenario--it is a "second best," in which one of the inputs required for an optimal ordering is unavailable. And they have a theory--the general theory of second best--with insights about how to design institutions under second-best conditions. (3) This paper deploys that theory to plot a thought experiment about criminal procedure reform in a "post-trial" world. (4)

Part I sets out the thought experiment's premise. Trial rates have been declining basically since plea bargaining began ascending. During that same period of time, however, nearly every other important feature of criminal justice--incarceration rates, crime rates, etc.--moved both up and down. From the juxtaposition of these two facts, I draw the tentative hypothesis that plea bargaining, once introduced, operates like a one-way ratchet on the criminal trial rate. This hypothesis cannot be proven, but the circumstantial evidence is strong. If it is right, it implies that a low trial rate is a stable feature of our criminal procedure, not some transitory characteristic. That has an important, though unhappy, corollary--that criminal procedure reforms that would require more trials are not likely to be adopted. I call this the "trial constraint." The paper explores the trial constraint's implications.

Part II provides some background on the trial's vanquisher--plea bargaining. It first explains the trial penalty, the mechanism that propels plea bargaining. (5) Next it examines the scholarly debate about plea bargaining. (6) Part II concludes by identifying two core objections to status quo plea bargaining. Plea bargaining today transpires in the shadow of overlapping offenses, draconian sentencing laws, and punitive pre-trial detention, facets of our criminal law that add up to enormous prosecutorial leverage. The result is a system where defendants are coerced to convict themselves, (7) and where, in many criminal cases (though not all), uncertainty about guilt is irrelevant to punishment. (8)

Part III confronts the extant literature on plea bargaining reform. Spurred on by a pair of 2012 Supreme Court decisions taking courts deeper into the regulation of plea bargaining than they had gone before, (9) that literature has flourished in recent years. That's a good thing. But many prominent proposals for fixing plea bargaining would, if implemented, increase the trial rate. (10) Sometimes that's the express goal of a proposal, but often it is an unstated yet predictable consequence. If the trial constraint described in Part I is real, it implies that reforms that would increase the trial rate are less likely to be adopted than they should be on their merits. (11)

Taken together, Parts I, II, and III form a conundrum. We know what is wrong with contemporary plea bargaining (Part II) and, in theory, how to fix it (Part III). But we do not know how to reform plea bargaining without violating the trial constraint (Part I). Part IV turns to the general theory of second best for help.

The general theory of second best, which originated in welfare economics, provides that when one "ingredient" required for a first-best optimum cannot be realized, it is generally unwise to keep the remaining first-best ingredients at the levels they would take in the optimum. (12) That sounds abstract, but the theory's implications are profound. When applied to questions of institutional design, the theory often recommends practices that are unseemly, as a matter of first principles, on the grounds that they offset other unseemly practices. In a second-best environment, two wrongs sometimes do make a right, or more precisely they make things less wrong.

The contemporary criminal justice system uses prosecutorial leverage to eliminate trials. The general theory of second best invites us to ask whether there is a better way to avoid trials. There is, and it is right in front of us.

In American courts, civil trial rates are about as low as criminal trial rates. (13) Yet in civil cases (generally speaking), no party is imbued with unilateral leverage sufficient to compel settlement. How does civil justice pull this off? Seeing a civil case through to judgment is enormously expensive. While no one thing compels civil litigants to settle, the desire to avoid the high costs of motions practice, discovery, pre-trial hearings, trial, and appeal is a key driver. (14) The result is a system without many trials and, in general, without one-sided leverage.

Part IV argues that the plea bargaining reforms discussed in Part III could be made feasible by "logrolling" them with measures that make formal criminal litigation more expensive. (15) If criminal trials can be avoided because they are too expensive for both sides, then policymakers could eliminate prosecutorial leverage while maintaining a low trial rate. And while it would be difficult to make the criminal trial itself more expensive, inefficiencies could be added on both the front end (with beefed-up motions practice and discovery) and the back-end (by liberalizing interlocutory appeals). The core idea of the thought experiment is to remake American criminal justice in the image of American civil justice, not because American civil justice is "first best," but because it would be better than the coercive plea bargaining status quo.

The civil justice model is not the only possible path to "second-best" criminal justice. Part IV also briefly considers a second approach, one more analogous to enforcement in administrative law than to civil justice. (16) If prosecutors could formally determine that a defendant is guilty, then they would not need leverage to coerce pleas. And while such unchecked prosecutorial power would (obviously) be problematic, it's plausible that even an administrative enforcement-style second best would, in many cases, be superior to the status quo. (17)

In the end, this paper offers a thought experiment built from the premise that a negligible trial rate is a fixed feature of our criminal justice system. It then explores how we might improve our criminal process while working within this basic constraint. Lest there by any misunderstanding, I acknowledge that the reform packages this paper describes will not be attractive to reformers in the real world of criminal justice. They are not really meant to be. So what is their point?

The visions of criminal adjudication this paper sketches are--judged from first principles--unattractive. Yet, I will argue, they are the best systems possible if we are stuck with the trial constraint, and they are at least plausibly better than the status quo. If this is correct, either a pessimistic or a constructive interpretation is possible. That a rotten second best could be better than the status quo reflects very poorly on...