Civilizing Criminal Settlements

Abstract

Most cases in the American legal system—civil and criminal—are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutors. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the cases, and simultaneously focusing the parties’ attention on the material issues. Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed and more fair settlements.

This Article argues that the criminal system should more closely resemble the civil system in the way that it encourages settlements. It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties. In particular, it contends that the criminal system should heighten pleading standards and take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation. One or more states have adopted several of these reforms to at least some degree.

Adopting civil-like settlement procedures in the criminal system would tend not only to produce more informed and more fair plea bargains, but would also reduce prosecutors’ leverage in plea negotiations. This Article also suggests discouraging prosecutors from demanding that defendants waive these procedures by adopting some form of fee shifting, which is also borrowed from civil practice.

Keywords: Criminal Law, Criminal Procedure, Civil Procedure, Courts, Settlements, Plea Bargains