INTRODUCTION I. A FALSE DICHOTOMY: PLEA BARGAINING VERSUS TRIALS A. The Traditional Plea Bargain/Trial Tradeoff B. Traditional Alternatives to Plea Bargaining 1. Short trials 2. Plea bans II. THE SCREENING ALTERNATIVE A. Screening as Random Event of Plan? B. Screening as Threat of Opportunity? C. Setting Prosecutorial Goals from the Inside D. Internal Prosecutorial Responses to Plea Bargaining III. THE SCREENING/BARGAINING TRADEOFF IN PRACTICE: NODA DATA A. Harry Connic Sings a Reform Tune B. What a Difference a Trade Makes 1. Direct evidence of open pleas, clues about charge bargains 2. Secondary clues about the tradeoff 3. Precharge bargaining? 4. The role of sentence bargains C. Potential Unseen Effects of the Tradeoff INTRODUCTION
When it comes to plea bargaining, we have created a false dilemma. The dilemma grows out of the central reality of criminal adjudication in the United States. The vast majority of criminal cases are resolved through guilty pleas rather than trials. (1) Most of those guilty pleas result from negotiations between prosecution and defense. (2)
Scholars, judges, prosecutors, defense lawyers, and politicians have offered only two basic responses to the fact that guilt is mostly resolved through negotiated guilty pleas: They take it or they leave it.
Some take the system more or less as it is. They accept negotiated pleas in the ordinary course of events, either because such a system produces good results or because it is inevitable. (3) They might identify some exceptional cases that create an intolerable risk of convicting innocent defendants, or unusual cases where there are special reasons to doubt the knowing and voluntary nature of the defendant's plea. These special cases might call for some regulation. (4) But the mine run of cases, in this view, must be resolved with a heavy dose of plea bargains and a sprinkling of trials. (5)
Then there are those who leave it, arguing that our system's reliance on negotiated guilty pleas is fundamentally mistaken. Some call for a complete ban on negotiated guilty pleas. (6) Others, doubting that an outright ban is feasible, still encourage a clear shift to more short trials to resolve criminal charges. (7) Restoring the criminal trial to its rightful place at the center of criminal justice might require major changes in public spending, and it might take a lifetime, but these critics say the monstrosity of the current system demands such a change.
This dilemma about plea bargaining--take it or leave it--is a false one. It is based on a false dichotomy. It errs in assuming that criminal trials are the only alternative to plea bargains. In this erroneous view, fewer plea bargains lead inexorably to more trials; indeed, the whole point in limiting plea bargains is to produce more trials.
This paper offers a different choice, and points to prosecutorial "screening" as the principal alternative to plea bargains. (8) Of course all prosecutors "screen" when they make any charging decision. By prosecutorial screening we mean a far more structured and reasoned charge selection process than is typical in most prosecutors' offices in this country. The prosecutorial screening system we describe has four interrelated features, all internal to the prosecutor's office: early assessment, reasoned selection, barriers to bargains, and enforcement.
First, the prosecutor's office must make an early and careful assessment of each case, and demand that police and investigators provide sufficient information before the initial charge is filed. (9) Second, the prosecutor's office must file only appropriate charges. Which charges are "appropriate" is determined by several factors. A prosecutor should only file charges that the office would generally want to result in a criminal conviction and sanction. In addition, appropriate charges must reflect reasonably accurately what actually occurred. They are charges that the prosecutor can very likely prove in court. Third, and critically, the office must severely restrict all plea bargaining, and most especially charge bargains. (10) Prosecutors should also recognize explicitly that the screening process is the mechanism that makes such restrictions possible. Fourth, the kind of prosecutorial screening we advocate must include sufficient training, oversight, and other internal enforcement mechanisms to ensure reasonable uniformity in charging and relatively few changes to charges after they have been filed.
If prosecutors treat hard screening decisions as the primary alternative to plea bargaining, they can produce changes in current criminal practice that would be fundamental, attractive, and viable.
The changes to prosecutorial practices we explore in this article would be fundamental. A prosecutor who makes a realistic and early evaluation of the case will no longer need to depend on negotiations with defense counsel to sort the wheat from the chaff. The screening decisions make possible a decrease in the number of negotiated guilty pleas, especially charge bargains. Without careful initial screening, the prosecuting trial attorney who refuses to negotiate for reduced charges faces the risk of acquittals, with the corresponding political and personal costs.
Intense prosecutorial screening may produce a small increase in the number of trials, but the more substantial change would likely be an increase in the number of "open" pleas--defendants pleading guilty as charged without any prior negotiated agreement with the prosecutor. Negotiated pleas are currently the rule; with this fundamental change in practice, they would become the exception. Open pleas, however, do not necessarily mean that defendants simply throw their fate to the court's mercy: Defendants may obtain information from judges about a likely sentence, and in some cases negotiate with judges, and thus retain some voice in their fate. (11)
Many critics of plea bargaining lump negotiated pleas together with open pleas. Because an open plea is likely based on the defendant's desire to receive a less severe sentence, even in the absence of a specific promise from the prosecutor, critics condemn open pleas as "implicit plea bargaining." In our view, however, a screening system that produces mostly open pleas, or pleas that reflect specific information from judges, is more attractive than a system where negotiated pleas predominate.
The dishonesty and inaccessibility of plea bargaining are two of its least attractive features. Plea bargaining is dishonest because the offense of conviction does not match either the charges the state filed or the reality of the offender's behavior. A particularly noxious form of dishonesty is overcharging by prosecutors--the filing of charges with the expectation that defendants will trade excess charges for a guilty plea. (12)
The public in general, and victims in particular, lose faith in a system where the primary goal is processing and the secondary goal is justice. The public doubts justice has been done when the sanction in a negotiated plea case does not match the actual behavior. Defendants and defense attorneys also consider bargaining for pleas to be dishonest, even when the bargain inures to their benefit. Defendants develop the cynical belief that they have received some undeserved favorable treatment because of a skillful defense lawyer or a sloppy or harried prosecutor. Defense attorneys in systems driven by bargains believe that they must convince most of their clients--even innocent defendants--to accept lesser punishments to avoid a substantial risk of much greater punishment.
Honesty of the sort we are discussing, therefore, appears when the offense of conviction aligns as closely as possible with both the actual criminal behavior and the charges the prosecutor initially files. In an honest system, the prosecutor sends a single, consistent signal about the wisdom and worth of the case.
The second strong critique of plea bargains points out that the process is largely inaccessible; it is not open for review or evaluation. Plea bargaining is inaccessible because bargains are made in the shadows. Only the final product of each negotiation is reported on paper and in the courtroom. Negotiations may turn on a huge range of factors going well beyond the elements of the offense and the strength of the government's evidence. Some of these factors may be appropriate, others inappropriate, but only the parties themselves ever know the actual factors that determined the outcome of the public proceeding.
Jurisdictions that implement the screening/bargaining tradeoff will be more honest and more accessible. In hard screening systems, prosecutors will be less likely to "overcharge" or "undercharge." The weakest cases exit early, while those remaining should stand up at trial. A screening-based system should also be more accessible than a system of negotiated pleas, because the public (especially the victims of alleged crimes) will receive clearer and more accurate signals about how the system adjudicates and punishes crimes. The charge is declared publicly from the outset and is easy to evaluate.
In addition to being more attractive than the current reality, the prosecutorial practices we advocate here are viable, both in the short and the long run. This is no call for a doubling or tripling of the public budget for criminal adjudication.
We know this practice is viable because it is now operating in a few American jurisdictions, without much controversy and without attracting the attention it deserves. For instance, over the last three decades New Orleans District Attorney Harry Connick has emphasized early screening of cases and has actively discouraged any changes of criminal charges as a result of negotiations after the charges are filed. Furthermore, the office maintains an extraordinary database, containing detailed information on more than ten years' worth of felony cases. This data allows us to test...