Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective

Judges in the United States currently play a limited role, if any, in the plea-bargaining discussions between prosecutors and defense attorneys. The plea-bargaining system is flawed; procedures for appointing and compensating defense attorneys ensure inadequate representation, and limited judicial oversight bestows upon prosecutors an unbridled discretion to charge and sentence. Increased judicial participation could address and mitigate these issues. A fifty-state survey of the rules for judicial participation in plea bargaining reveals that each state either expressly disallows judicial participation by statute or procedural rules, prohibits it by case law, discourages it by case law, expressly allows and encourages it by statute, or refuses to take a stance. Though it can be advantageous (for example, in ensuring that the defendant is well-informed; performing a check on prosecutorial discretion and defense attorney misconduct; and improving efficiency), increased judicial participation may harm the bargaining process (for example, by impeding the voluntariness of a defendant’s decision; spreading prohibited confidential information; and usurping the prosecutorial function). Judges can become more involved in one or more of five ways that mitigate the aforementioned risks: using a separate judge or magistrate for plea and trial; recording plea bargains for future review; ensuring that judges take a facilitative role; involving the defendants when possible; and holding plea negotiations in informal settings.

“Allowing judges to participate, in a limited way, in the plea bargaining system would not fix all of the ills of the plea bargaining system. . . . However, by allowing judges to participate in a prescribed way, with a separate judge for the plea process, recording the negotiations, setting the role of the judge appropriately, and allowing an informal setting, states can realize the benefits of adding a neutral to the process that is familiar with the system and that participants will accept.” p. 597