The Screening/Bargaining Tradeoff

The authors argue that traditional plea bargaining should be replaced due to the impact on the number of trials and its inherent dishonesty and inaccessibility. Prosecutorial screening is the ideal alternative to plea bargaining, they argue, and would create an increase in trials, but more importantly, an increase in open pleas. Open pleas reflect more bargaining and information from judges, rather than prosecutors. This gives the defendant more of a say in their plea. This screening process should consist of (1) an early and careful assessment of each case; (2) filing of only appropriate charges that would likely result in criminal conviction and sanction; (3) severely restricting all plea bargaining, specifically charge bargaining; and (4) ensuring uniformity in charging through sufficient training, oversight, and other internal enforcement mechanisms. Screening is a better alternative than others suggested because it is viable, easily implemented, and does not call for a substantial increase in budget. The analysis of New Orleans proves that when a prosecutor invests resources early in a case, it results in higher declination, fewer negotiated pleas, more trials, and higher rates of open guilty pleas than other United States jurisdictions.

“Intense prosecutorial screening may produce a small increase in the number of trials, but the more substantial change would likely be an increase in the number of ‘open’ pleas – defendants pleading guilty as charged without any prior negotiated agreement with the prosecutor. Negotiated pleas are currently the rule; with this fundamental change in practice, they would become the exception. Open pleas, however, do not necessarily mean that defendants simply throw their fate to the court’s mercy: Defendants may obtain information from judges about a likely sentence, and in some cases negotiate with judges, and thus retain some voice in their fate.” p. 33