Judicial Involvement in Plea Bargaining

Judges typically play a relatively passive role in plea bargaining, yet there is an ongoing debate regarding the appropriate level of judicial involvement in the plea process. The ABA provides a small window of opportunity for judges to be involved in the plea process beyond the plea colloquy. However, it is unclear what this involvement should look like. Federal courts, eighteen states, and the District of Columbia prohibit judicial involvement in plea negotiations, whereas eight states permit such involvement, and the remaining twenty-four are silent on the issue.  This article discusses the perceived pros and cons of increased judicial involvement as well as the limited literature related thereto. To increase understanding of this issue, the study analyzed the perceptions of 233 state court judges regarding their current roles in the plea process (e.g., ensuring the factual basis and constitutionality of the plea) and whether judicial involvement in the plea negotiation process should be expanded. The results of the survey indicated that judges believe ensuring the constitutionality of a plea is a role that is shared with other actors (i.e., the prosecutor and/or defense attorney), which may result in judges refraining from involving themselves in the plea process. Moreover, judicial perception regarding increased participation in the plea process generally correlated with that judge’s state’s rules and statutes (e.g., judges in states where judicial involvement is prohibited generally resisted increased judicial involvement).

“Overall, this research suggests that judges believe overseeing the constitutionality of the plea is a shared role, which may result in spending minimal time supervising the plea colloquy and not frequently involving themselves in plea negotiations. Further, state statutes and rules regarding judicial involvement in plea negotiations are related to both judicial perceptions and behavior.” p. 371