The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

This study analyzes judicial involvement in plea negotiations. The study was conducted via in-depth interviews with both lawyers and judges from various jurisdictions across 10 states. The study found that resolving cases that would not be tried, as early as possible, was a key motivator for including judges in plea negotiations. Several procedures such as mandatory early meetings with judges, settlement dockets, and mediation programs have been utilized by judges to encourage early settlement via guilty plea, enabling the court to have more efficient case management. The study goes on to articulate some of the benefits of judicial involvement in plea negotiations, beyond better case management, from the perspective of the study’s participants. For example, the judges who were interviewed suggested that their involvement in cases provided them with the opportunity to suggest sentencing options that were not considered by the prosecution or defense. It also provided the judges with an opportunity to correct errors made by the attorneys. The study also considered the risk of coercion by involving judges in the negotiation process. The interviewees were seemingly unworried about such coercion because of the safeguards that the courts of their jurisdiction placed to limit this issue. Overall, the researchers argue that, based on their findings, judicial involvement may be the solution to a healthier criminal justice system.

“…[O]ne of the perennial risks of judicial involvement in negotiations is the prospect that the judge might create too much pressure to plead guilty for defendants who believe they are innocent or would rather go to trial. We pursued this topic with our interviewees. Several defense attorneys, judges, and even prosecutors acknowledged some risk that a judge might cross the line while speaking with a defendant. But they also believed that standard limits on the judge’s involvement kept that risk low, and that the benefits to the defense far outweighed that risk. In their view, judicial involvement made an already coercive situation a little less so. Like the other self-serving claims about descendant perceptions we report here, our interviewees’ assertions deserve testing that this study cannot provide. Yet the consistency with which participants held this view was striking.” p. 383