Judicial Power to Regulate Plea Bargaining

49 Pages Posted: 21 Jan 2016

See all articles by Darryl K. Brown

Darryl K. Brown

University of Virginia School of Law

Date Written: January 1, 2016

Abstract

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges — and in effect, the law — from any meaningful role.

This article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of “exclusive” executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts — based on both common law and legislation — retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the “efficiency” of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review.

Keywords: separation of powers, plea bargaining, adjudication, criminal procedure

Suggested Citation

Brown, Darryl K., Judicial Power to Regulate Plea Bargaining (January 1, 2016). William & Mary Law Review, Vol. 57, No. 102, 2016, Virginia Public Law and Legal Theory Research Paper No. 7, Available at SSRN: https://ssrn.com/abstract=2719909 or http://dx.doi.org/10.2139/ssrn.2719909

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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