A Holistic Framework to Aid Responsible Plea-Bargaining by Prosecutors

Abstract

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts. As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.” This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process. Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good. This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up. In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors. As such, this note explores the scope of prosecutorial discretion in plea bargaining. First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law. This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

Keywords: prosecutors, plea-bargaining, criminal justice reform

JEL Classification: K14, K41