69 Pages Posted: 20 Apr 2017 Last revised: 8 Nov 2017
Date Written: November 1, 2017
Class counsel and prosecutors have a lot more in common than scholars realize. Because these lawyers have to make decisions on their client’s behalf that clients would make in other contexts, they prompt substantial concerns about lawyers’ accountability to their clients. Accordingly, there is a lot that each context can learn from the other about how to hold these lawyers accountable. This article considers what criminal law can learn from class action law. Its central insights are first that diffuse entities comprised largely of apathetic individuals cannot be expected to hold their lawyers accountable. And second, to combat that accountability deficit, just as judges play an important role in holding class counsel accountable, so too should judges play an important role holding prosecutors accountable — both to their public-clients and their constitutional obligations.
In more concrete terms, this article contends that once a plea agreement has been reached, courts should substantively review the sentence that the parties recommend with an eye to the process that yielded the agreement, much as courts review class action settlements. As with class members in class actions, courts should afford opportunities to be heard to those who wish to contest the deal to inform the court’s review. If courts are hamstrung at sentencing by prosecutors’ charging decisions that they think inappropriate, judges should articulate their concerns and ask prosecutors to justify those decisions on the record in open court to facilitate accountability by the electorate and within prosecutor offices.
Keywords: Criminal Law, Criminal Procedure, Prosecutors, Class Actions, Class Counsel, Courts, Settlements, Plea Bargains, Plea Agreements
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