Regulating Settlement: What is Left of the Rule of Law in the Criminal Process?

Abstract

Consider what plea bargains would be like if legal rules were taken more seriously than they currently are. A court would recognize a defendant's willingness to be convicted of an offense only when certain conditions were met: (1) the defendant actually committed the crime; (2) the defendant was punished with the penalty authorized by law for that crime; (3) all government actors involved in the investigation, prosecution, defense, and adjudication of the case had complied with the law governing the criminal process; and (4) the settlement agreement did not relieve any of them of the duty to comply with the law in the future. This ideal agreement has been replaced in many cases by a bargain in which the government trades sentencing and charging concessions for a defendant's promise not to seek a remedy for past and future violations of legal rules. Put simply, the law is for sale in criminal cases-and there are plenty of buyers.

Part II describes the spectrum of legal rights that parties are allowed to exchange in the settlement of criminal cases. Part III summarizes justifications for limiting this exchange. Part IV discusses why judicially enforced attempts to regulate bargains in criminal cases may instead only add to what is traded. It uses as an example recent proposals to increase accuracy in negotiated criminal judgments. Part V concludes by suggesting that meaningful changes in bargaining patterns, including improvements in the accuracy of criminal settlements, will require structural changes that are not subject to trading by parties in any case.