Judicial Participation in Plea Negotiations: A Comparative View

Most jurisdictions in the United States prohibit judges from playing an active role in plea negotiations, allowing them only to review a bargain once it has been presented to the parties. Some scholars fear that increased judicial oversight may interfere with the judges’ impartiality and actually induce defendants to forgo trial. However, others argue that increasing judges’ involvement can make both the negotiation process and the final dispositions fairer by providing an additional check for coercion, inaccurate verdicts, unjust bargains, and other systematic pressures. Delayed involvement of judges increases the risk of pleas that are involuntary and uninformed. The author shares her findings from a thorough survey of Germany, Florida, and Connecticut—three jurisdictions that allow more significant judicial involvement—which she supplements with case law and interviews of local practitioners. Judges in the German system initiate and lead plea negotiations as well as collect their own evidence. Though they do not participate in the negotiations, judges in Florida make clear what outcomes they find acceptable. Judges in Connecticut may comment on the merits of a case, but must not preside over trials involving the same defendants. These three jurisdictions demonstrate that increased judicial involvement can address flaws in the plea-bargaining process.

“Judges can provide a neutral assessment of the merits of the case and prod the defense attorney or the prosecutor to accept a fairer resolution. They can also offer a more accurate estimate of the expected post-plea and post-trial sentences, which is especially valuable in systems of indeterminate sentencing. Finally, the involvement of an impartial party can render the bargaining process more transparent and more acceptable to the public.” p. 200