Academic journal article William and Mary Law Review

Judicial Power to Regulate Plea Bargaining

Academic journal article William and Mary Law Review

Judicial Power to Regulate Plea Bargaining

Article excerpt

ABSTRACT

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges--and in effect, the law--from any meaningful role.

This Article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of "exclusive" executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts--based on both common law and legislation--retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the "efficiency" of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.

TABLE OF CONTENTS

INTRODUCTION
   I. LEGAL REGULATION AND JUDICIAL OVERSIGHT OF PROSECUTORIAL
      DISCRETION
      A. Exclusive Executive Authority and Separation of Powers
      B. History of Criminal Prosecution Authority
      C. Prosecutorial Power in the Federal System
      D. Prosecutorial Power in State Systems
      E. Conclusion
 II. REGULATION OF PROSECUTORS IN COMMON LAW SYSTEMS
III. JUDICIAL REVIEW OF PROSECUTION DECISIONS IN ENGLAND
 IV. THE PRESUMPTION OF FAIRNESS IN UNREGULATED BARGAINING
CONCLUSION

INTRODUCTION

The pervasiveness of plea bargaining and the rarity of trials are familiar features of American criminal justice systems. For years the federal courts have achieved more than 95 percent of all convictions through guilty pleas, and in most state courts, the figures are in the same ballpark. (1) But the "triumph" of plea bargaining (in George Fisher's description) hardly distinguishes criminal adjudication in the United States from the practices of legal systems elsewhere. (2) Plea bargaining, or some comparable form of abbreviated, consent-based adjudication process, is widely and routinely relied upon in criminal justice systems worldwide as an alternative to trials. Even though negotiated settlements of criminal prosecutions fit much less comfortably in the civil law tradition than the common law tradition, (3) civil law jurisdictions have adopted their own variants of plea bargaining as well. (4)

Despite lamentations for the "vanishing trial" and criticisms of plea negotiation practices, the basic appeal of negotiated guilty pleas is easy to understand. Negotiated settlements are perfectly adequate and uncontroversial in many cases. Some defendants are quite willing to plead guilty. Oftentimes facts are relatively simple; evidence of guilt is comprehensive and unambiguous without trial; and the criminal charge does not call for normative assessments of "reasonable justification," "recklessness," or the like.

Originally, a core function of the common law trial was to gather evidence. After the early common law era in which jurors were expected to know many facts or investigate on their own, the trial became a means to produce evidence, such as witness testimony that sometimes even the parties had not previously heard. …

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