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

• Author: Lieb, Doug
• Position: Continuation of II. Bringing Vindictiveness Back through Conclusion, with footnotes, p. 1040-1069

1. Regulating Pleas in an Administrative System

   The Supreme Court has recently come around to the view that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (128) The Court has consequently shown a greater inclination to regulate plea bargaining, (129) beyond the minimal requirements of the colloquy in which the trial judge formally ratifies the previously negotiated agreement. (130) In doing so, however, the Court has relied on a body of law treating pleas as the exception even as it now declares pleas the rule. As a result, recent developments in constitutional criminal procedure have only been able to regulate plea bargaining through indirect means.

   As I explain below, the Court has crafted these new rules of criminal procedure on the assumption that there is something like a "standard" or "correct" plea offer that a defendant ought to receive. It has deployed this assumption to fairly modest effect, entitling a defendant to this "standard" deal if his lawyer fails to inform him when he has been offered it or properly advise him about whether he should accept it. But the Court has imposed no obligation directly on the prosecutor to offer the standard deal--or even something that remotely approximates it--in the first place. As I will go on to argue in Section II.B, however, the assumption of the "standard" offer could serve as the basis for a more robust rule that would constrain bad prosecutorial behavior and reduce excessive discretion.

   The Court began its innovation in Sixth Amendment doctrine with its 2010 decision in Padilla v. Kentucky, (131) holding that a defendant was denied the effective assistance of counsel when his attorney failed to advise him that his plea would result in his removal from the United States. That holding broke new ground in making clear that a criminal defense attorney must attend to a conviction's collateral consequences to fulfill her obligations to her client. (132) But it also reflected a new willingness to tailor new procedural protections specifically to plea bargaining. (133)

   The 2012 companion cases of Missouri v. Frye (134) and Lafler v. Cooper (135) went further in imposing procedural order on the bargaining process. In Frye, a defendant's attorney had failed to communicate plea offers that, if accepted, probably would have resulted in a lower sentence than the defendant ultimately received after accepting a later, harsher offer. (136) In Lafler, the defendant rejected a lenient plea offer on the faulty advice of his lawyer and ultimately received a much longer sentence after being convicted at trial. (137) In both, the Court held that the defendant's Sixth Amendment right to counsel had been violated and that the defendant was entitled at least to the possibility of resentencing and perhaps to the benefit of the earlier offer. (138)

   Lafler and Frye rely on an implicit idea of a "standard" plea deal that a defendant who engaged in certain conduct ought to be offered. As a logical matter, it makes little sense to require that a defendant be given the benefit of an erroneously forgone plea offer unless he was, in some sense, "supposed" to receive that deal rather than the harsher one he ultimately got. The normative force of the claim that plea bargaining "is the criminal justice system" is that a typical plea made in the ordinary course of business--not the sentence imposed by a judge after a jury trial--is the true outcome that the system aims to produce. (139)

   Indeed, both cases explicitly rely on an understanding that the normal, ordinary-course plea offer is the outcome that the defendant should receive. Frye held that, to establish that he had been denied the effective assistance of counsel, a defendant would need to show a reasonable probability that neither the prosecution nor the trial court would have later prevented him from accepting or entering the plea offer he never received. (140) It "should not be difficult" for courts to evaluate such claims by defendants, the Frye majority explained, because "in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable pleas and sentences." (141) In other words, because they know what a standard plea deal looks like, local trial courts are in a position to determine whether they would have later rejected the plea that was never communicated to the defendant. If the offer the defendant never heard about looks like a reasonable offer, taking into account any intervening circumstances, then the defendant may be entitled to it.

   Yet, even as they legitimize and operationalize the idea that a defendant is "supposed" to receive a "standard" offer in this way, the recent plea-bargaining cases say nothing about whether or when prosecutors must actually make such offers. Precedent and competing systemic values prevent the Court from creating a substantive entitlement to a standard plea deal. Indeed, "there is no constitutional right to plea bargain" at all. (142) Judges also have the discretion to reject even "standard" negotiated pleas. (143) Both of these may seem like uncontroversial points, but both depend on the central proposition-purportedly rejected by Lafler and Frye--that plea bargaining is the aberration and not the norm. If one really believes that plea bargaining is the criminal justice system, it is difficult to understand why a defendant would not have a right to plead. (144)

   The Court's inability to create a substantive entitlement to a standard deal stems from the more general principle that prosecutors have "broad discretion" in choosing whether and how to prosecute a case. (145) But this view similarly presupposes that trials, not pleas, are the criminal justice system. Precedent makes clear that prosecutorial decisions are "particularly ill-suited to judicial review" because they depend on the government's priorities and its assessment of subjective factors, like "the strength of the case," that courts are not "competent" to review. (146) This logic may be motivated partly by separation-of-powers concerns, (147) but it is also substantially prudential. (148) Regardless, the notion that prosecutorial charging is unreviewable presumes some kind of judicial review later in the process--that is, it presumes that trial (or at least a more searching inquiry into the bargained-for plea than a rote colloquy) is the norm. It would be even more unwise and equally offend the separation of powers for the judiciary to review neither the charging decision nor the determination of guilt. (149) One can only countenance the unreviewability of prosecutorial discretion by assuming some subsequent opportunity to review whether the defendant's conduct actually satisfies the charge filed.

   The result is that our current law is an uneasy blend of half-measures: sometimes it sees pleas as the "true" outcome, and sometimes trials. As a result, it governs the day-to-day administration of criminal justice only through indirection, and it imposes virtually no legal limits on prosecutorial discretion itself. (150) A prosecutor may not single out a person and charge him on the basis of his race, (151) of course, but even then, it is nearly impossible for a defendant to prove that a prosecutor has done so. (152) The common law has long recognized the tort of malicious prosecution, but a prosecution is not malicious unless the defendant first establishes that it was resolved in his favor. (153) Where a prosecutor has probable cause and no discriminatory motive, her freedom of action thus remains unfettered.

2. Toward a New Standard: Vindictiveness-as-Vengeance

   I have just argued that constitutional criminal procedure increasingly recognizes that plea bargaining is the criminal justice system and must be regulated. In doing so, it reflects an emergent understanding that there is such a thing as a "normal" deal for particular conduct in a given jurisdiction, and that a defendant generally ought to get that deal. But because of contrary precedent, genuine esteem for the constitutional ideal of the jury trial, and a "governing ideology [that] does not admit" that the prosecutor is really making an administrative determination of guilt, (154) the Court is unable to impose direct limitations on plea bargaining that would completely normalize it as a substitute for trial.

   I now argue that the idea of prosecutorial vindictiveness might help to regulate the market for plea bargains within these legal and normative constraints. There may be better ways to address the problems of excessive discretion and coercive plea bargaining, including lowering and standardizing sentence lengths and eliminating overlap between criminal statutes to reduce the government's ability to choose between them. In the absence of such systemic reforms, however, the idea of prosecutorial vindictiveness is conceptually useful precisely because it is roundabout. A rule against vindictive prosecution, properly understood, would directly regulate plea bargaining not at the cost of further entrenching pleas as the rule and trial as the exception, but for the sake of protecting the constitutional right to trial.

   My claim is that a different standard prohibiting prosecutorial vindictiveness could do much of the work the original was meant to do, and could be reconciled with the pervasiveness of plea bargaining, if it defined vindictiveness more narrowly and more sharply. Specifically, prosecutors could be barred from acting with the subjective intent of punishing, as a wrong, the defendant's exercise of a legally protected right, including and especially the right to trial. I call this new way of understanding prosecutorial vindictiveness "vindictiveness-as-vengeance."

   This Section elaborates and defends vindictiveness-as-vengeance in three steps: first, identifying the conduct it aims to prevent; second, describing how it might be enforced through an evidentiary presumption; and...