Judicial Power to Regulate Plea Bargaining

The Supreme Court has long recognized how essential plea bargaining is to criminal justice administration. In Santobello v. New York, the Court implied that the Constitution requires judges to supervise plea bargaining because courts have the power to vacate pleas obtained unfairly. In subsequent cases, however, the Court shifted control of plea negotiation toward the executive branch. Two notions prevailed. First, adhering strictly to separation of powers principles, every aspect of prosecution—from charging and litigation tactics to plea negotiation and conviction—belongs exclusively to executive officials. Secondly, interactions between prosecutors and defendants should function in the same manner as those between private contracting parties in an economic market; “fairness” should entail freedom from government intervention and legal standards about bargaining practices. Though the federal constitution promotes neither explicitly, the Court adopted both notions in its plea-bargaining jurisprudence, and state courts and legislatures followed. The United States’ unregulated plea-bargaining system contrasts strongly with England’s deferential one, which enables courts to play a meaningful role in monitoring extreme prosecutorial charging discretion.

“The Supreme Court built the contemporary constitutional law of plea bargaining upon a set of premises that excluded judges from a meaningful role in plea bargaining process or in assuring substantively fair outcomes from that process. This constitutional vision in turn has largely set the parameters for all state and federal law on plea bargaining.” p. 1272