The Screening/bargaining Tradeoff

Wright, Ronald, Miller, Marc, Stanford Law Review

 
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 whether the District Attorney's policies have any real impact.

The heart of this paper--the empirical sword that cuts through abstract claims about what is possible--is our study of the New Orleans data. It confirms that a prosecutor can invest serious resources in early evaluation of cases and maintain this practice over the long run. This screening leads to relatively high rates of declination (that is, refusals to prosecute a case after the police recommend charges). When combined with policies discouraging reductions in charges once they are filed, the results are lower levels of negotiated pleas, slightly higher rates of trial, and notably higher rates of open guilty pleas than in typical American jurisdictions. This combination of policies can survive political and administrative challenges of many types.

The implications of the screening/bargaining tradeoff for real world policies and practices are immense. Every prosecutor in the country should rethink how the office screens cases and how it explains its practices to the public. Of course, every prosecutor's office invests some resources in the initial screening of cases. But this study calls on prosecutors to appreciate the link between screening and negotiated guilty pleas, and to use screening devices with the explicit goal of lowering the number of plea bargains. Every prosecutor's office should now set targets for the maximum percentage of negotiated guilty pleas; then it should invest more resources in early screening until the office achieves those goals. The explicit connection between screening and plea bargains should be a regular part of a prosecutor's self-assessment and public explanations for charging and trial decisions.

The screening/bargaining tradeoff should also become part of the public, political dialogue about the justice system, especially at election time. The interesting public question should not be the "conviction rate," (13) but rather the "as charged conviction rate." This rate could be expressed as a simple ratio. The higher the ratio of "as charged convictions" to "convictions," the more readily a prosecutor should be praised and reelected. A ratio near one--where most convictions are "as charged," whether they result from guilty pleas or trials--is the best sign of a healthy, honest, and tough system. The lower the ratio of "as charged convictions" to "convictions" (approaching zero), the more the prosecutor should be criticized for sloppiness, injustice, and obfuscation. A lower ratio might also reflect a prosecutor's undue leniency.

This Article begins by revealing the false dichotomy inherent in the current academic discussion about plea bargaining. The current literature sets up a tradeoff between plea bargaining and criminal trials, but does not consider other kinds of tradeoffs in the criminal process, including the tradeoff between enhanced screening and plea bargaining. This same false dichotomy limits the vision of reformers, who have traditionally offered interesting but limited alternatives to plea bargains in the form of quick trials and plea bans.

The second Part moves from bargaining to the screening side of the tradeoff. We explore here the legal scholarship and public discourse on screening and charging decisions, noting that this literature radically underplays the institutional setting for an individual prosecutor's screening choice in a particular case. Part II looks to prosecutorial office policies and practices as the most prominent and promising source of limits on screening decisions. We make explicit here our reasons for considering these internal policies to be a form of law worth studying and changing.

The third Part of this Article describes the implementation of the screening/bargaining tradeoff in New Orleans. We describe the New Orleans system and present data about actual charging and bargaining decisions in New Orleans between 1988 and 1998 to assess whether the screening/bargaining tradeoff works.

The fourth Part considers whether the screening/bargaining tradeoff provides a more honest and accessible option than traditional plea bargain-centered systems and trials from the perspective of prosecutors, defense attorneys, police, legislatures, and the public. The fourth Part also considers whether the well-known federal screening policies disprove the screening/bargaining hypothesis. The fifth Part considers the implications for prosecutors who want to implement the screening/bargaining tradeoff, and for their critics.

I. A FALSE DICHOTOMY: PLEA BARGAINING VERSUS TRIALS

A huge literature exists on plea bargaining, much of it produced over the past thirty years. (14) Despite its girth and apparent variety, (15) the literature shares this feature: It treats plea bargains and criminal trials as a zero-sum tradeoff. (16) The literature assumes that fewer plea bargains will lead to corresponding increases in criminal trials. (17) It evaluates plea bargaining in light of the criminal trial, since the virtues of criminal trials--their public and open nature, the independent decisionmakers, the defendant's constitutional rights and privileges--have corresponding vices in plea bargaining. The scholars differ on how much a system can and should allow plea bargains to encroach on criminal trials, but their recommendations fall along a continuum between the fixed poles of plea bargains and trials.

This Part begins with a short description of the widely perceived virtues and vices of plea bargaining. In all of these discussions, the virtues and vices are proffered in the context of a seemingly simple choice: Should there be more bargains or more trials? The second section of this Part considers the traditional solutions of plea bans and "quick trials" offered by scholars who see plea bargaining as a serious problem.

A. The Traditional Plea Bargain/Trial Tradeoff

Most observers find that plea bargaining offers institutional advantages to each actor in the criminal justice system, and most especially to prosecutors and judges, compared to a trial-centered world. Because it offers something for everyone, the dominance of plea bargaining is easy to understand.

Simmering beneath the discussion of plea bargaining's advantages and costs is an enormous normative question: Is plea bargaining desirable compared to a trial-centered system? There is no consensus answer to this question. When compared to a system where trials predominate, the effects of plea bargaining are equivocal. In some circumstances, plea bargains look more attractive than trials; on other criteria, trials look better.

Most discussions of plea bargaining begin with the observation that plea bargaining makes the prosecutor more administratively efficient. Negotiated pleas allow each prosecutor to handle far more cases than she could if each case were to proceed to trial. (18) For some, this greater efficiency makes the shift from trials to negotiated pleas worthwhile, perhaps even ideal. (19) In theory, the prosecutor could divert resources from current cases to new cases, allowing the prosecutor to use plea bargains as a pricing mechanism to get the greatest deterrent power out of limited resources. (20)

Plea bargaining makes prosecutors more efficient because it gives them a greater ability to predict outcomes in cases. (21) In a system where almost every case is tried on the original charges, the prosecutor would have to account for some risk that the judge or jury would acquit. The government might win most trials but would lose others outright. On the other hand, where prosecutors can reduce charges, they achieve a reliable compromise between maximum punishment and no punishment at all. Some list this as one of the major benefits of plea bargaining, both because it allows prosecutors to predict the effects of their charges, and because the public receives "half a loaf" where it might have received none at all. (22) Indeed, the compromise outcome allows the prosecutor to respond to the "equities" in particular cases. (23)

For the critics of plea bargaining, this compromise outcome is morally suspect, for the judge imposes a criminal sanction without any public resolution of what really happened. (24) Further, critics say, the gain in prosecutorial efficiency is not enough to justify the practice because of its many other ill effects. Some maintain that a prosecutor's ability to reach new cases creates new inefficiencies in a system designed to detect and punish true wrongdoers. (25) Others insist that the true costs of expanded prosecutorial reach are beside the point; the reliance on guilty pleas rather than trials is simply wrong. (26)

The clearest effect of plea bargains on trial judges is to marginalize them. Judges have little voice in traditional plea bargains. (27) The parties settle on the charges and agree on the likely or acceptable sentence that will flow from the facts and charges they plan to present to the judge. (28) A few judges might keep their sentencing options open and refuse to accept a guilty plea if the plea agreement includes a "binding" sentence agreement. (29) But in the end, judges have every reason to listen to the recommendations of the parties and to follow the outlines of their agreement. In an adversary system, judges reason, the judge has limited justification to upset an agreement that satisfies both parties. (30) The judge, facing major caseload pressures, has little incentive to inquire behind the parties' agreement. (31) Indeed, sentencing judges tend to validate and encourage bargains through a "plea discount" (or a trial penalty): They impose lighter sentences on those who waive their right to trial. (32)

These advantages in plea bargaining for prosecutors and judges are contrasted to the costs that would come with shifting substantial numbers of plea bargains into the full trial process. Indeed, operating under the assumption that the only available tradeoff is between plea bargains and more trials, many observers of plea bargaining are convinced that any normative arguments about the effects of plea bargaining are pointless. The question, critics say, is not whether plea bargaining is more desirable than a system resolving most cases through trial, but whether it is possible to replace our current system, dominated by negotiated guilty pleas, with a different one dominated by criminal trials.

B. Traditional Alternatives to Plea Bargaining

The sharpest critics of plea bargaining have offered some responses to the claim that alternatives to plea bargaining are not feasible. The search for viable alternatives, however, remains trapped in a trial-centric world. The possibilities for reform have, like the assessments of the virtues and vices of plea bargaining, been limited by the false dichotomy between plea bargains and trials.

Scholars have looked to other times or places (through historical or comparative studies) to observe systems that rely less on negotiated pleas. In early America, plea bargains were virtually unknown. Plea bargaining became the dominant method of resolving criminal cases in the United States some time during the nineteenth century. The primary engine behind the shift from trials to plea bargaining was an increasing civil and criminal caseload. The caseload burden was multiplied by institutional (33) and doctrinal (34) changes that made trials more costly and time-consuming. Plea bargaining responded to the needs of prosecutors and judges to dispose of large numbers of cases when the public failed to fund increases in the system's capacity to try cases. (35)

Scholars have also looked at modern jurisdictions with unusually high trial rates, which are typically explained by "quick trials" (or, some say, "slow pleas"). The search for alternatives to plea bargains also points to periodic experimental efforts by a few American prosecutors to "ban" plea bargaining entirely.

1. Short trials.

Whenever prosecutors claim to have reduced plea bargains and increased trial rates, academics respond with more than their usual dose of skepticism. Bargaining is inevitable, say observers, not only because of severe caseload pressure, but also because of social habits. (36) The "repeat players" in criminal cases--prosecutors, experienced defense attorneys (especially public defenders), and judges--interact in predictable ways. Prosecutors and defense attorneys develop routines for handling similar cases, and the "work group" makes it difficult for any one actor to change bargaining terms too abruptly. (37) The human beings who engage daily in this process have a limited capacity for conflict and innovation, and will naturally, over the long haul, find ways to accommodate one another. (38)

Sometimes, however, this theory about group dynamics is hard to square with reality. For those who wish to establish that plea bargaining is an inevitable and irrepressible force in American criminal justice, Philadelphia is a problem. The city has long operated a system that relies more on short bench trials than on pleas of guilty. A number of scholars conducted case studies in Philadelphia (and a few other cities with high rates of bench trials) and concluded that the trials in those cities were not truly adversarial trials. Instead, they were "slow pleas" of guilt. The brief trials allowed the defendant to present evidence about the circumstances of the case, not to obtain an acquittal, but to influence the judge at sentencing. (39)

Stephen Schulhofer visited the Philadelphia courts and took away a different impression. In his famous 1984 article, (40) Schulhofer observed a large number of bench trials in the city and concluded that they were genuinely adversarial proceedings where defendants retained many of the constitutional protections sacrificed during plea bargaining. Schulhofer called for other jurisdictions to follow Philadelphia's lead and to treat short trials as a viable alternative to plea bargaining. (41)

The point of studying Philadelphia and other cities with exceptionally high trial rates is to evaluate this one alternative to negotiated pleas, since it fits the preconceptions of the plea bargain/trial tradeoff. For those debating short trials, the combination of prosecutorial screening and open guilty pleas does not present another alternative worth studying, (42) since it qualifies in this world view as, at best, "implicit bargaining." (43)

2. Plea bans.

Explicit efforts to shorten trials have not been the preferred technique among American prosecutors who want to limit the reach of negotiated pleas. Instead, the handful of prosecutors who aspire to "ban" plea bargaining--either for targeted crimes or for the entire criminal docket--have issued strong ukases against bargaining, enforced by more rigorous screening and modest staffing increases, as their most workable solution.

Academic verdicts on these experiments have been subdued, because the efforts never produced the expected large increases in the trial rate. (44) These periodic experiments deserve closer attention and more enthusiastic reception than they have received. Granted, they demonstrate how negotiations between defense lawyers and prosecutors will persist in some form despite a nominal "ban" on negotiations. But they also show the power of screening--combined with restrictions on charge bargains--to reduce the importance of negotiated pleas.

Among the most famous American plea bargaining bans occurred in Alaska during the 1970s and 1980s. In 1975, state Attorney General Avrum Gross declared that prosecutors would no longer engage in charge bargaining or sentence bargaining. Attorney General Gross hoped to restore public confidence in the system, increase the number of trials, improve the litigation skills of prosecutors, and return prosecutors to their traditional roles of evaluating evidence and trying cases instead of negotiating. (45)

Major studies in 1978 and 1991 evaluated the impact of the Alaska plea ban. (46) By all accounts, both charge bargaining and sentence bargaining became rare events during the first ten years of the policy. During the late 1980s, charge bargains reappeared, but prosecutors continued to avoid sentence bargains. For a few years, the trial rate increased modestly. Seven percent of charged cases went to trial before the ban, and the rate moved to 10% before returning to 7% by the end of the 1980s. (47)

Since the cases were not ending in negotiated pleas or trials, what was happening to them? The answer was a combination of aggressive screening and open guilty pleas. Before the ban, prosecutors in Fairbanks refused to prosecute about 4% of the felonies referred to them by the police or other investigators. After the ban, the proportion of felonies that prosecutors declined to prosecute increased to about 44%. (48) A large portion of the case load (about 23%) was disposed of through open pleas of guilt. (49) This was part of the Attorney General's thinking when he created the plea ban. More careful selection of cases would make it possible to stick with the initial charges, even in front of a judge or jury.

The Alaska experience received lackluster academic reviews. Some implied that the failure to increase trials proved that unseen bargains were still driving the system, and explained the high number of open guilty pleas. (50) Others pointed to the reappearance of charge bargaining after ten years, and suggested that it is futile to place controls on the quintessential prosecutorial decision of charge selection. (51) Some implied that Alaska was too unusual a jurisdiction to offer any guidance to prosecutors in most major American cities. (52) However, other jurisdictions scattered around the country have duplicated pieces of the Alaska experience over the years. Some prosecutors in other locales have picked out priority crimes like homicide and banned plea bargains for those cases. (53) Some of the bans target particular forms of bargaining rather than particular crimes. (54) The reaction to these experiences, like the reaction to the Alaska plea ban, has been subdued. If these prosecutors were not increasing their trial rates, the critics found the effort unimportant. (55)

These experiences do not mean that any ban on charge reductions will produce small trial increases and large numbers of open guilty pleas. If prosecutors do not change their screening principles to insist on more declinations of cases referred to the office, the dispositions shift in other directions. In El Paso County, Texas during the 1980s, the chief prosecutor announced an end to all plea bargaining in burglary cases. There was no organized effort to change the screening of such cases, and the number of trials increased enough to create a serious backlog of untried cases. (56)

Partial bans on plea bargaining appear regularly around the country. Most prosecutors today who plan to restrict plea negotiations focus on priority crimes, such as homicide or sex crimes. (57) Some of the bans are limited to particular courts or phases of litigation, such as the statutory ban on plea bargains for most serious felonies in Superior Court in California, (58) or the ban on plea bargaining in the Supreme Court in the Bronx in the mid-1990s. (59) When plea bans are limited to a particular court (such as the highest trial court), the effects are usually minimal because the bargainers simply move to a different (typically earlier) point in the process. (60)

Plea bans exist today, but we know little about their effects on case dispositions and sentences. The attention of academic observers has strayed to other areas, even as prosecutors keep innovating. There have been few efforts to sort out the amazing variety of plea bans over the last twenty years. Apparently, once it was established that plea bans would not necessarily increase the trial rate, these real-world developments no longer fit the terms of academic debate and were ignored. For each reform proposal--greater use of trials, fast trials, and plea bans--the critical question has remained the tradeoff between plea bargains and trials.

Thirty years of scholarship has missed a fundamental perspective on plea bargaining: there are in fact many alternative points of comparison when assessing the wisdom and necessity of plea bargains. Bargaining systems could be devised to bring negotiations more into the light. Review systems could be established, perhaps by allowing appeals after pleas on much broader grounds than currently allowed. (61) Executive branch authorities such as parole boards could modify or enhance sentences to adjust for erroneous or excessive pleas. (62) Substantive criminal code reform can also be considered as an alternative to plea bargaining. Criminal codes filled with poorly worded and highly duplicative provisions not only invite bargains, but also less honest bargains. (63)

This broader perspective on the possible tradeoffs between plea bargains and many other aspects of the criminal justice process requires an understanding of the full range of institutions involved in the criminal system, and of the multiple overlapping processes for assessing and resolving cases. To apply the screening/bargaining tradeoff we highlight and discuss in this Article, we must first understand the institutional setting of the prosecutor's decision to file or decline criminal charges. The next Part turns from bargaining to screening and explores the internal regulation of prosecutorial discretion.

II. THE SCREENING ALTERNATIVE

If plea bargaining and massive increases in trials are not the only available options, what alternatives might exist? In this Part we argue that prosecutors could establish "hard screening" procedures. Such procedures involve more than just a policy of prosecuting fewer cases. Four interlocking features define the hard screening practices we advocate as a better alternative to negotiated guilty pleas: early assessment, reasoned selection, barriers to bargains, and enforcement.

The prosecutor must spend resources immediately after receiving a case to gather information and evaluate the prospects at trial. The various prosecuting attorneys who decline charges in some cases and select charges in others must engage in a reasoned selection; that is, they must apply a common set of criteria that establish priorities for the entire office. Once the charges are in place, the office must normally expect trial prosecutors to keep the charges as originally selected. Negotiation over dismissing or reducing charges is either forbidden or severely limited. In this system, the prosecutor spends resources up front in assessing the case, and then lives with the consequences through final adjudication, whether by an open plea or at trial. Taken together, the intent behind these hard screening policies is to shift case outcomes away from negotiated guilty pleas.

The linkage between screening and the pattern of dispositions in a jurisdiction has attracted no comment. Academic writers have assigned prosecutorial screening to play many bit parts, but no starring roles. A few pieces examine the screening choices of prosecutors in specialized contexts, such as limiting the federalization of crime, (64) or white-collar crime investigations. (65) But the nature of screening choices in normal cases, accounting for most of the volume in a prosecutor's office, has not received the sustained attention it deserves.

Our goal is to examine prosecutorial screening discretion not as a problem to be solved or a threat to justice in individual cases, but as a regulatory device, a means to various ends in the prosecutor's office. The important regulation comes from within the office rather than from external reviewers. (66) Through deliberate choices about screening, a chief prosecutor can change the place of jury trials, the pattern of convictions and dismissals, the allocation of police and correctional resources, and the public's access to information about the system. And it is the consistency of these effects across normal cases--not just the prevention of the occasional biased prosecution--that offers the greatest benefits of principled screening.

This Part begins with a review of the negative treatment that prosecutorial screening typically receives. We view prosecutorial screening as a plan rather than a random event, and thus as an opportunity rather than a threat. The two final sections of this Part look at the goals that prosecutors might pursue through internal administration, and focus on one such goal, the minimization of plea bargaining.

A. Screening as Random Event or Plan?

Screening could include any fork in the criminal justice road--stopped or not stopped, arrested or not arrested, charged or not charged, imprisoned or not imprisoned, released or not released. That suspects and cases are screened is a familiar idea. But the usual account of screening describes the end product more than the decisionmaking process itself. The most famous illustration of this product-oriented view of screening appears as a chart in the 1967 President's Commission on Crime, which shows potential cases that fall away like apples from the tree. The chart portrays the steady attrition from the initial incident, through investigation, charging, dismissals, acquittals, and then, at the end, to the few remaining incidents where an offender is convicted and sentenced to prison. (67) But the chart does not explore who dropped the cases and why. (68) Those who ask why cases drop out assume that they should not. When cases do drop, something either wrong or random has occurred. (69)

Screening can be understood in a very different way, as systematic and affirmative decisions. These decisions may move a case forward or reject the case. Both sorts of decisions are interesting, and either may be principled or unprincipled, consistent or inconsistent. This perspective on screening shifts from the mere product of the decisions to the decisionmaking calculus itself.

A few screening decisions, such as grand jury review and preliminary hearings, are already perceived in this more active and positive light. The screening function of the grand jury is said to act as barrier to oppressive or biased decisions by prosecutors. (70) One might say the same (and with more plausibility) about preliminary hearings. (71) The police screen at every step of their investigative, arrest, and preliminary charging functions. (72) Just as surely as judges at preliminary hearings, and more consciously than police officers making street-level judgments, prosecutors send some cases out of the system and reevaluate others.

B. Screening as Threat or Opportunity?

The leading scholarly efforts to evaluate prosecutorial screening discretion appeared twenty to thirty years ago. (73) The pieces held enormous promise. They focused (properly) on office-wide prosecutorial choices rather than the individual decisions of prosecuting trial attorneys. Some emphasized internal control mechanisms within prosecutors' offices rather than external control techniques such as statutes or judicial review.

But most of these early efforts to understand prosecutorial screening also singled out an overly narrow purpose for "controls" on prosecutorial discretion. Their examinations of prosecutorial screening discretion aimed to control biased or "selective" prosecution in individual cases. (74) While principled screening practices might serve such a function, they do so only as a byproduct of a broader goal. Screening can prevent arbitrary allocation of resources and inconsistent decisions in prosecution more generally.

In his path-breaking 1969 volume Discretionary Justice, Kenneth Culp Davis called for limits on the discretionary power vested in both police and prosecutors in the American legal system. According to Davis, "the American legal system seems to be shot through with many excessive and uncontrolled discretionary powers, but the one that stands out above all others is the power to prosecute or not to prosecute." (75) Two years later, Norman Abrams wrote to establish the viability of developing internal office policy to guide the exercise of prosecutorial discretion. His argument focused on whether such internal guidance should be published and subject to judicial review. (76) A decade after Abrams, Richard Frase studied in some detail the declination practices of federal prosecutors in one district and discussed the implications of those practices, (77) and James Vorenberg developed recommendations for the "decent restraint" of prosecutorial discretion, particularly as found in charging and plea bargaining decisions. (78) Vorenberg's proposals emphasized controls over prosecutors coming from legislatures, sentencing judges, and defense lawyers. (79)

These early works presented later scholars with two important choices. In both cases, the later writers chose the wrong path. The first choice involved the most important source of controls over prosecutorial choices. Should those controls come from within the prosecutor's office or from other institutions?

Frase concentrated on the internal controls, suggesting that prosecutors study their existing patterns of declinations and the reasons given for those refusals to prosecute, and then develop internal guidance to build on that experience. (80) Vorenberg tilted more decisively toward the external controls. Sentencing judges, he suggested, could constrain plea bargaining through granting a uniform discount for defendants who waive their trial rights. (81) Legislatures could limit prosecutorial authority through reform of the substantive criminal code, revising it to be more precise and to allow less judgment. (82)

More recent scholarship follows the path that Vorenberg marked, unfortunately choosing the external over the internal controls. (83) While external controls might be useful and relevant, they are decidedly limited. Experience here is telling: It has proven almost impossible to convince judges or legislatures to create meaningful limits on the screening decisions of prosecutors. (84)

The early screening literature made a second choice concerning the most important purpose for controls on prosecutorial discretion to serve. Vorenberg and Davis (and to a lesser extent, Abrams) worry that some prosecutors select targets on the basis of invidious motives such as racial or gender bias. (85) Their proposed controls on prosecutorial discretion aim, above all, to stop discrimination in individual cases.

More recent legal scholarship on the question of prosecutorial discretion retains this focus on discrimination. Today it is hard to find a spirited defense of prosecutorial discretion. Most authors see only the bad effects of discretion: biased prosecutions that systematically harm defendants from particular demographic groups, (86) or random prosecutions that apply the state's coercive power in unprincipled and arbitrary ways. (87)

We agree with these arguments, as far as they go. The threat of unequal treatment for individual defendants is real, and offers one powerful reason to monitor the charging discretion of the individual prosecutor. But this view also misses a major opportunity; it misses the potential benefits of screening for an entire justice system. Prosecutors can use their screening practices not just to prevent unequal treatment in individual cases, but to shift the method of disposing of all cases. Prosecutors can use screening principles to eliminate some plea bargains and to allocate office resources toward priority crimes or defendants. Screening principles can reveal otherwise hidden choices about the allocation of resources, creating a system that is more transparent to the public.

Several empirical studies of prosecutorial discretion from the 1960s glimpsed the possibilities. The very earliest work on prosecutorial charging decisions catalogued the sorts of factors that might convince a prosecutor to charge or not to charge in a particular case: strength of the evidence, seriousness of the offense, and so forth. (88) The next wave of scholarship in the 1970s began to measure how often various factors mattered to the prosecutor. (89) From the outset, those studying prosecutorial charging in the field noticed that office resources figured into the charge decision. (90)

We believe the virtues of screening reach much further. Prosecutors can use screening principles to achieve purposes far beyond balancing existing resources. Sometimes prosecutors change screening practices deliberately as a way to alter the overall mix of crimes prosecuted and types of dispositions.

C. Setting Prosecutorial Goals from the Inside

Legal scholars rarely discuss the internal administration of justice agencies. The reasons for this unsatisfactory coverage are familiar to any close reader of criminal procedure literature. First, these issues are not framed in constitutional terms, and judges do not resolve them. This deprives legal scholars of their traditional window on the law. Second, good information about the operation of prosecutors offices is hard to find or collect. Third, jurisdictions vary, offices within jurisdictions vary, individual offices vary over time, and individual prosecutors vary in their approaches. These multiple levels of variation make it hard to evaluate and generalize about prosecutorial policies and practices, including screening. Whatever the reason for the failure, scholars overlook central features of the American criminal justice system when they fail to consider the values that agencies might seek and how they might achieve those goals through internal rules. (91)

Many goals could guide the development of internal rules, procedures, and habits. Prosecutors need to allocate their limited resources. (92) But what values will inform those guidelines and rules, made necessary by limited funds? Principles favoring the prosecution of "stronger" over "weaker" cases beg the question: Is a "stronger" case one where conviction is more certain at trial, where a plea is likely, or where the interests served by criminal prosecution (deterrence, retribution, and so forth) are strongest? (93)

A prosecutor might show a concern for equal treatment. Elected state prosecutors might handle with special care any cases that could catch the attention of the media or voters. (94) Their concerns might focus on individual notorious cases or on categories of cases that provoke heightened public interest (such as homicides, drug crimes, sexual assault, or …

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Publication information: Article title: The Screening/bargaining Tradeoff. Contributors: Wright, Ronald - Author, Miller, Marc - Author. Journal title: Stanford Law Review. Volume: 55. Issue: 1 Publication date: October 2002. Page number: 29+. © 1999 Stanford Law School. COPYRIGHT 2002 Gale Group.

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