Fixed Justice: Reforming Plea Bargaining With Plea-Based Ceilings

Abstract

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to challenge, conventional fixed discounts are doomed to failure. This Article urges abandoning the effort to constrain prosecutors' discretion to make lenient plea offers and instead shifting regulatory focus to the creation of sentencing rules that prevent trial courts from imposing overly harsh trial sentences. The Article makes an original contribution to the plea bargaining literature by demonstrating that effective enforcement of discount limits is possible through adoption of plea-based ceilings. Ceilings would limit sentence differentials by ensuring that trial sentences do not exceed plea sentences by more than a modest amount. Because ceilings focus on limiting punitive trial penalties rather than preventing overly lenient plea offers, ceilings are practically enforceable in a way that conventional fixed discounts are not, and thus promise a method to improve the guilt/innocence sorting function of criminal procedure.

Keywords: criminal procedure, plea bargaining, criminal justice

JEL Classification: K14, K41