Enhancing the Judicial Role in Criminal Plea and Sentence Bargaining
Klein, Susan R., Texas Law Review
Conventional wisdom in criminal procedure scholarship offered two competing models of the American criminal justice system, famously labeled by Professor Herbert Packer as the "Crime Control" and "Due Process" models.1 The Crime Control model posited "the efficient, expeditious, and reliable screening and dispositions of persons suspected of crime as the central value to be served by the criminal process."2 The Due Process model asserted that the truth-seeking function is "limited by and subordinate to the maintenance of the dignity and autonomy of the individual."3 Most criminal law casebooks began with a description of these models and asked the student to consider which direction the Court should head. These descriptions are now disappearing from the literature. The first reason is normative: we realize that neither model can be adopted without undesirable changes in constitutional precedent and executive functions, and neither would optimally serve the consensus goals of accuracy and equality. The second is practical: we realize that the American criminal justice system, like the civil system, would collapse if even a small percentage of suspects took advantage of these procedures and demanded trials.
The Due Process model ascended during the civil rights movement with the Warren Court revolution, due in large measure to the shameful treatment of African Americans in the southern states.4 This model has been eroded by various judicial and societal trends. First, as Professor Carol Steiker has written, the Burger and Rehnquist Courts steadily chipped away at the contours and enforcement of constitutional criminal procedural guarantees, denying the promise of procedures that would protect liberty and equality while ensuring the safety of the community through the conviction of guilty and dangerous criminals.5 Second, the erroneous public perception, fueled by politicians and the media, that violent crime has increased since the 1970s,6 has led to such a broadening of the scope of substantive criminal law that procedural protections have little force.7 With thousands of federal offenses to choose from,8 a determined prosecutor can generally locate some charge that will stick.9 Finally, the drug war has transformed a large percentage of our population, especially young African American males, into criminals, even though these perpetrators are primarily non-violent offenders who can be captured only through the most invasive investigative processes or interpretations of Fourth Amendment doctrine.10
However, neither did the law enforcement model of criminal procedure triumph. Serious flaws with those criminal procedures that concern accuracy11-especially the doctrines surrounding eyewitness identification,12 adequacy of counsel, prosecutorial misconduct, provision of exculpatory information, and scientific and forensic testing13-have led to recently discovered wide-spread wrongful convictions of innocent persons.14 Erroneous convictions cannot be squared with the Crime Control model, as each wrongful conviction allows the guilty party to escape punishment and further endanger society. The coercive power of plea bargaining leaves us little data to determine what percentage of defendants pleading guilty actually are.15 Unequal treatment of criminal defendants based on wealth, race, ethnicity, geography, and gender plainly prevails,16 giving rise to social unrest (or at least misgivings), even among the middle class. Draconian mandatory minimum penalties, especially for drug offenses,17 challenge community notions of fairness, leading to a lack of respect for the system and arguably to a decrease in the deterrent and expressive force of the law.18 It is perhaps for these reasons that the current conservative Court has nonetheless recently expanded jury trial rights,19 strengthened the Sixth Amendment's Confrontation Clause,20 contracted the class of defendants eligible for the death penalty,21 and reigned in prosecutorial control over sentencing. …