In a recent law review article, Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It, 111 Nw. U. L. Rev. 1429 (2017), Judge Rakoff discusses the history of prosecutorial power, plea-bargaining, and mass incarceration, and reviews some of the possible solutions. The short version:
- Repeal mandatory minimum and career offender laws (something the federal judiciary has requested for several decades) and a reduction in the sentences “recommended” by sentencing guidelines.
- Do away with plea bargaining altogether? This, in fact, is the status quo in many European countries. In Germany, for example, where plea bargains are officially not recognized, roughly 50% of all criminal cases go to trial, and most of the remaining cases are resolved through de facto pleas to the initial charges.
- Promulgate binding regulations, similar to those enacted by administrative agencies, that would govern plea bargaining
- A voluntary version of the same basic proposal, that prosecutorial agencies, state and federal, each adopt some internal guidelines that, while not enforceable by outside parties, would nevertheless bring some order to prosecutors’ exercise of discretion in the plea bargaining process.
- A variation on what is sometimes referred to as a “preliminary hearing.” where the prosecutor and defense counsel would be required to appear shortly after indictment before a judicial officer, who would separately question them, in camera and under seal, as to what their evidence was, what discovery they would likely have, and what disposition they were seeking. The judicial officer, without revealing any of this information to the other side or to the judge who would be assigned to the case for all other purposes, would then recommend to the parties what leads still needed to be explored, what disclosures needed to be made, and, where appropriate, what the judicial officer thought would be a fair disposition of the case. In other words, the judicial officer would, in effect, oversee the plea bargaining process and, while not having the power to force either side to his view, could use her persuasive powers to assure a fairer, more neutral process. (This is Rakoff’s own proposal – a variation is currently in practice in the Connecticut).
- Have prosecutors occasionally serve as defense counsel
Most of these things have already been tried in various different states. And I think JAG attorneys work both sides. On a macro level, if you eliminate plea bargaining two things could happen. One, prosecutors would have to charge many fewer arrestees with crimes because each prosecution would require much more work, i.e., a trial rather than a plea. Crime victims would be the big losers here, denied justice because prosecutors would be swamped with work. Two, many cases would unnecessarily proceed to trial, even though the defendant acknowledges guilt and agrees on a resolution with the prosecutor, because the judge’s indicated sentence is too harsh. That’s a huge waste of money. And you would end up with law review articles titled, “Why Judges Rule the Courtroom.” My solution? Hire more people to try more cases and leave the rest of the system intact.