Plea Bargaining and Criminal Law’s Disappearing Shadow

This article examines how the theory of bargaining in the “shadow of the law” in the civil context translates to the criminal law context. The piece argues that while plea bargaining does take place in a “shadow,” it has become something other than the shadow of the law. Instead, it is the shadow of prosecutors’ preferences, voters’ preferences, and budget constraints. The article then looks at how this premise applies in three distinct contexts: discretionary and guidelines sentencing, violent and drug crimes, and federal and state crimes. The piece highlights a pattern in these areas: the greater the territory that the law covers, the smaller the role the law plays in determining the criminal punishment.

“The defining characteristic of American-style plea bargaining may be that it does exist in the shadows, because it so often fails to internalize the laws that purport to govern it. The bodies of law, state and federal, that claim to define crimes and sentences do not really do what they claim. Instead, those bodies of law define a menu – a set of options law enforcers may exercise, or a list of threats prosecutors may use to induce the plea bargains they want. The menu says little about what options are exercised or what threats are used. The real law of crimes and sentences is the sum of those prosecutorial choices.” p. 2569