The Screening/bargaining Tradeoff

By Wright, Ronald; Miller, Marc | Stanford Law Review, October 2002 | Go to article overview

The Screening/bargaining Tradeoff

Wright, Ronald, Miller, Marc, Stanford Law Review

   A.      The Traditional Plea Bargain/Trial Tradeoff 
   B.      Traditional Alternatives to Plea Bargaining 
     1.    Short trials 
     2.    Plea bans 
   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 
   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 


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. …

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