Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure
77 Pages Posted: 20 Sep 2006 Last revised: 27 Oct 2012
This article proposes a new theoretical framework to analyze and reform prosecutorial adjudication and plea bargaining, two of the most heatedly debated and practically relevant topics in American criminal procedure. Relying on insights from moral philosophy, the article distinguishes between two different types of plea bargaining. In the first type, the prosecutor unilaterally decides who is innocent and guilty, and for which offense, by using coercive plea proposals, which make the defendant's guilty plea involuntary. In the second type of plea bargaining, the prosecutor and the defendant bilaterally adjudicate the case through a voluntary agreement.
The article shows that it is only in the former type of plea bargaining that we may consider the prosecutor as the sole adjudicator of the case. The article also explains that this system of unilateral prosecutorial adjudication is neither an adversarial nor an inquisitorial system, but a hybrid system that has not been identified so far.
In addition, the article also makes clear why the first type of plea bargaining that enables unilateral prosecutorial adjudication violates the requirements of due process, while the second type does not. With the adoption of key reforms, the article further argues, plea bargaining may be practiced in a manner preclusive of unilateral prosecutorial adjudication and consistent with due process.
Keywords: criminal procedure, plea bargaining, prosecutorial adjudication, and comparative criminal procedure
JEL Classification: K14, K41
Suggested Citation: Suggested Citation