Plea Bargaining's Baselines

65 Pages Posted: 2 Sep 2015 Last revised: 31 Mar 2016

See all articles by Josh Bowers

Josh Bowers

University of Virginia School of Law

Date Written: September 1, 2015


In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so. In this way, the Court’s coercion baseline is legalistic — it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus from code law. In a series of right-to-counsel cases, it has redefined prevailing plea-bargaining practice as the benchmark. This amounts to an emerging extra-legalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it. Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so. My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline — a proportionality baseline. I defend this alternative extra-legalistic baseline and even prescribe a practical methodology for its discovery. And, notably, my preferred approach is not without precedent. The Court has applied analogously extra-legalistic baselines to claims of coercion in other constitutional contexts.

Keywords: Plea-bargaining, guilty pleas, coercion, proportionality, legality, equitable discretion, Lafler v. Cooper, Missouri v. Frye, NFIB v. Sebellius

JEL Classification: K14, K40, K41, K42

Suggested Citation

Bowers, Josh, Plea Bargaining's Baselines (September 1, 2015). 57 Wm. & Mary L. Rev 1083 (2016), Virginia Public Law and Legal Theory Research Paper No. 49, Available at SSRN:

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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