Vindicating vindictiveness: prosecutorial discretion and plea bargaining, past and future.

• Author: Lieb, Doug
• Position: Introduction into II. Bringing Vindictiveness Back, p. 1014-1040

NOTE CONTENTS INTRODUCTION I. THE ACCIDENTAL DOCTRINE AND ITS UNDERLYING TENSIONS A. A Note on the Development of Plea Bargaining B. The Idea of Vindictiveness C. From Blackledge ... 1. Waiver 2. Stumbling into Vindictiveness D. ... To Bordenkircher II. BRINGING VINDICTIVENESS BACK A. Regulating Pleas in an Administrative System B. Toward a New Standard: Vindictiveness-as-Vengeance 1. The Standard 2. The Evidentiary Presumption 3. The Merits a. Practical b. Doctrinal c. Expressive d. Conceptual CONCLUSION INTRODUCTION

The day after the Internet activist and hacker Aaron Swartz committed suicide in January 2013, his family angrily described his death as "the product of a criminal justice system rife with intimidation and prosecutorial overreach." (1) The federal government had "contributed to his death," they argued, by bringing an "exceptionally harsh array of charges" for his unauthorized downloading of materials from the academic database JSTOR. (2)

Subsequent commentary agreed that Swartz had been pursued overzealously. Larry Lessig passionately criticized "the absurdity of the prosecutor's behavior," arguing: "Somehow, we need to get beyond the 'I'm right so I'm right to nuke you' ethics that dominates our time. That begins with one word: Shame." (3) Many others with a variety of ideological leanings agreed. (4)

Some characterized the behavior of the U.S. Attorney's Office as "vindictive." (5) The prosecutors' approach at least outwardly appeared to be aimed at making the defendant suffer a severe price for conduct that hurt no one and resulted in no financial gain. In the ordinary sense of the word, (6) the government's conduct may well have been vindictive. But it almost certainly was not vindictive in the legal sense. (7)

Legal vindictiveness does not refer to a prosecutor's generic ill feeling toward, or even his desire to harm, a defendant. Rather, as defined by the Supreme Court, vindictiveness means that a prosecutor has retaliated against a defendant for the exercise of a legal right, denying her due process. (8) One might think, then, that pursuing more severe charges or a harsher sentence after a defendant exercises her right to a jury trial (9) would constitute vindictiveness. But it doesn't. The law specifically permits severely penalizing defendants for going to trial in an effort to induce a guilty plea--or, in the Court's words, "openly present[ing] the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution." (10)

Using charging discretion aggressively to pressure defendants into pleading guilty is exactly what the existing doctrine of vindictive prosecution permits. And this is, by and large, what prosecutors do. (11) But this conduct is precisely what many people found reprehensible and "vindictive" (12) about the government's generally ordinary (13) treatment of Aaron Swartz. The Swartz case therefore brings into relief how inadequate our existing legal vocabulary and doctrine are to address prosecutorial behavior that many intuitively find unfair and improper. Indeed, the legal concept of "vindictive prosecution" is an essentially useless analytic tool in its current form. It fails to capture much of the behavior that we might properly want the law to name and shame with that label.

The current state of affairs also invites reflection on whether plea bargaining ought to be more closely policed and, if so, how. In three recent cases, (14) responding to contemporary scholarship about plea bargaining and coercive prosecutorial power, the Supreme Court has attempted to regulate the market for pleas. (15) Its chosen route for doing so has been the defendant's right to the effective assistance of counsel. That right safeguards the "fundamental fairness" of the proceedings, ensuring a level of reliability sufficient to sustain "confidence in the outcome." (16) The underlying premise of the Court's recent intervention into plea bargaining, therefore, is that some bargained-for pleas may be "bad" or "false" outcomes unworthy of confidence. But it is not at all clear that imposing obligations on defense lawyers, retrospectively enforced on post-conviction review, is the best way to avoid "bad" bargains. The Court's recent doctrinal innovation in this area should prompt us to ask which actors are best positioned to establish and enforce norms of what constitutes a "good" or "true" bargain. (17)

The inadequacy of the way the law currently talks about "vindictiveness" and the recent doctrinal and scholarly ferment about plea bargaining give rise to this Note's two related projects.

The first is to explain why "vindictive prosecution" came to have the particularized, unusual, and ultimately unhelpful meaning that it does. To that end, I present new research about the origins and development of the doctrine of vindictive prosecution. Most scholarship on vindictive prosecution is relatively old and highly doctrinal. (18) The story newly told here is, I hope, interesting in its own right. It may help to illuminate the unpredictable circumstances that shape Supreme Court doctrine and, as a result, the lives governed by it. (19) More purposefully, I aim to dispel the notion that the law's equation of "vindictive" with "retaliation for the exercise of a legally protected right, other than the right to a jury trial" ought to be seen as unimpeachable precedent. And, most important, I hope that excavating the development of the doctrine can help us understand why it did not work and how it might become relevant again.

The Note's second project, then, is to rehabilitate the legal concept of "vindictive prosecution" in hopes of contributing to current debate and doctrinal development about prosecutorial discretion, plea bargaining, and excessive punishment. Intervening in the ongoing discussion and responding to the Supreme Court's recent efforts, I offer a new proposal. I suggest that reviving some parts of the old vindictive prosecution doctrine while shedding some of its unnecessary strictures can produce a useful framework for policing discretion, fairness, and leverage in the plea bargaining process.

I argue that the idea of vindictive prosecution as retaliation for the exercise of a legal right was a poorly conceived accident from the beginning. It grew out of a case meant to be about something else, and it failed to negotiate the fundamental tension between encouraging plea bargaining and honoring the right to trial. Vindictive prosecution doctrine was unstable because it reflected a Court lurching from one pole to another--from glorifying process values with little regard for practical consequences, to protecting plea bargaining at almost any cost to the right to trial--without working to stake out a middle ground. I identify such a middle ground and attempt to revitalize the legal concept of vindictiveness in a way that negotiates the tension between pleas and trials. In particular, I argue that an updated vindictive prosecution standard prohibiting prosecutors from punishing the defendant's exercise of the right to a trial as a wrong would be responsive to salient problems in today's criminal justice system. It may not be an ideal solution, but it suggests that it is possible to address important and competing objectives--imposing boundaries on prosecutorial discretion, valuing the constitutional right to trial, and permitting efficient bargains--in minimally disruptive fashion.

This argument proceeds in two parts.

Part I tells the story of how vindictive prosecution doctrine came to be. Its erratic path reflects the fundamental tension between venerating the Sixth Amendment right to a jury trial and coherently regulating a system designed to discourage its exercise. Section I.A presents background on the practice and law of plea bargaining. Section I.B discusses vindictiveness doctrine's origins in another context. Section I.C discusses the Court's hasty and unthinking application of vindictiveness to prosecutorial conduct, while Section I.D explains its retreat.

Part II contends that the idea of vindictive prosecution could prove newly useful in regulating prosecutorial discretion while both genuinely respecting and formally venerating the right to trial. Section II.A discusses existing scholarship and doctrine addressing the regulation of the plea-bargaining market. I argue that the Court is moving toward, but has not yet effectively imposed, constraints on prosecutors' ability to drive an exceptionally harsh bargain. Section II.B argues for the merits of a new standard prohibiting prosecutors from acting with the subjective intent to punish the defendant's exercise of his right to trial, rather than merely with the goal or effect of deterring it. A conclusion follows.

For a brief period during the 1970s, "it appeared that 'vindictive prosecution' claims would be both common and successful." (20) Today, such claims are "rarely made and even more rarely succeed." (21) But the history is worth understanding and the concept worth renewing.

1. THE ACCIDENTAL DOCTRINE AND ITS UNDERLYING TENSIONS

   In 1974, the Supreme Court held that a defendant...