Vindicating Vindictiveness: Prosecutorial Discretion and Plea Bargaining, Past and Future

Article excerpt

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 


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. …