Toward a More Comprehensive Plea Bargaining Regulatory Regime

Abstract

America’s plea-bargaining system is famously informal. While there is a smattering of state and federal regulation of guilty pleas, the practice of plea-bargaining itself remains almost entirely untouched by law. Because plea bargaining is the mechanism by which the vast majority of criminal convictions are secured -- upwards of 95% by most estimates -- this means that almost all criminal convictions are the product of an essentially unregulated, and in many ways entirely lawless, process. There is an increasing awareness of the harmful effects of an unregulated plea bargaining system and the ways that this lack of regulation enables highly coercive practices that effectively deprive most criminal defendants of their constitutional right to trial. The corrosive effect of plea-bargaining’s dominance is unmistakable and the continuing lack of meaningful regulation of it threatens the basic integrity of the criminal legal system.

This Article argues that it is imperative that policymakers take this threat seriously and urges them to take steps to impose real regulation on the plea-bargaining practice. The Article identifies several reforms that might be taken. These include requiring all plea offers to be in writing and filed in court, standardizing the timing and content of plea agreements, limiting the kinds of rights that criminal defendants can be required to waive in order to obtain a plea agreement, and shifting sentencing hearings from post-trial to pre-trial to ensure that defendants are aware of the consequences of their plea decisions. The filing requirement would also facilitate creation of meaningful mechanisms to regulate the magnitude of the sentencing differential between plea and trial sentences. This latter goal is critical to ameliorate the highly coercive aspects of present plea bargain practice, since more than any other factor it is the threat of heavy trial penalties that undermine the value of a defendant’s constitutional right to trial. Implementation of these reforms would go a long way toward bringing much needed procedural formality to the informal practice of plea bargaining and would help establish a more rational regulatory system of plea bargaining practice. It is also hoped that these reforms might help reverse the longstanding trend toward ever more vanishing criminal trials.

Keywords: criminal procedure, plea bargaining, law, plea agreements, guilty pleas, criminal defense

JEL Classification: K1, K14, K41