Plea bargaining occupies an ambivalent position in the criminal justice system. Most observers of the system subscribe to its practical benefits, but acknowledge that it is an imperfect method for dispensing justice.(1) The academic literature has consisted largely of attempts to provide a theoretical justification for plea bargaining(2) and, conversely, of calls for the system's abolition.(3)
This Article accepts plea bargaining as a given. It focuses on the ethical role of prosecutors who find, in particular cases, that the system is not operating in its expected fashion. Courts(4) and professional responsibility codes(5) impose on prosecutors an undefined obligation to "do justice."(6) In the trial context, that obligation is best understood in terms of the adversarial process.(7) The plea-bargaining stage, however, does not fit the adversarial model,(8) nor is its goal the same.(9) It is therefore unclear what duties, if any, prosecutors have to defendants involved in plea bargaining, or to the legal system, other than to believe that a defendant is guilty before accepting a plea.
Consider just one example:
A defense counsel acts ineffectively during pretrial representation
by failing to request discovery or exculpatory material.
The prosecutor knows that, ordinarily, he would have to produce
exculpatory material to the defense but also knows that
in this case defense counsel is unaware of the material.
The law of criminal discovery does not always require disclosure of helpful information prior to the defendant's plea.(10) The hypothetical prosecutor, if she(11) believes the defendant to be guilty,(12) could convince the defendant to accept a plea higher than he would accept if aware of the information--and higher than other, better-represented defendants would have to accept. Do, or should, the prosecutor's obligations to justice require her to take steps that might keep her from maximizing the defendant's punishment?
To resolve this issue, the prosecutor needs to be able to refer either to a theory of what just plea bargaining is all about or to a theory of how bargaining, in general, achieves appropriate results. Part I of this Article discusses negotiation in the civil context, analyzes whether traditional bargaining notions apply equally to criminal cases, and considers whether those notions obviate the need for special conduct by prosecutors in plea bargaining. Part I concludes that society's presumptive tolerance for civil pretrial settlements cannot extend to the criminal context.
Part II considers the dominant justifications for plea bargaining, identifies their premises, and attempts to identify a concept of justice that fits those justifications. Part III analyzes these different justifications using a series of hypothetical scenarios that might implicate the prosecutor's obligation to do justice. In part, examining how these justifications work in practice illustrates weaknesses--or lack of definition--in some of the rationales themselves. More importantly for this Article, however, the analysis suggests that just behavior by prosecutors depends, in a very concrete way, upon the theory under which they operate. Prosecutors cannot identify proper conduct unless they have a clear notion of what plea bargaining should accomplish.
Part IV thus offers a practical solution to the problem of doing justice. It argues that prosecution offices, in their internal guidelines or procedures, should set forth the plea-bargaining theory or theories that justify the offices' participation in the process.(13) In contrast to the status quo, that simple step would enable individual prosecutors to respond to specific plea-bargaining dilemmas and to make meaningful determinations of what constitutes justice in the individual case.
Even if prosecutorial agencies resist …