Open Prosecution

Abstract

The U.S. Supreme Court has recognized, where the vast majority of criminal cases are resolved without a trial, that: “criminal justice today is for the most part a system of pleas, not a system of trials.” While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated; or discriminatory, self-interested, and arbitrary, with very little oversight or sunlight. For years, academics and policymakers have called for meaningful plea-bargaining data to fill this crucial void. In this Article, we describe opening the “black box” of prosecutorial discretion by tasking prosecutors with documenting detailed case-level information concerning plea bargaining. This is not a hypothetical or conceptual exercise, but rather the product of theory, design, and implementation work by an interdisciplinary team. We began collecting systematic data in two prosecutor’s offices, with a third to follow shortly. We describe how the data collection system was designed, piloted, and implemented, and what insights it has generated. The system developed can readily be adapted to other offices and jurisdictions. We conclude by developing implications for prosecutors’ practices, defense lawyering, judicial oversight, and public policy. Open prosecution has further constitutional and ethical implications, as well as still broader implications for democratic legitimacy. An open prosecution approach is feasible, and, for the first time in the United States, it is in operation.

Keywords: plea bargaining, data, prosecution, sentencing, due process, transparency, criminal procedure