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June 25, 2017

"A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors"

The title of this post is the title of this notable new note authored by Aditi Juneja now available via SSRN.  Here is the abstract:

In our criminal justice system, ninety-four percent of cases are resolved through plea in state courts.  As Justice Kennedy recently observed: “the reality [is] that criminal justice today is, for the most part, a system of pleas, not a system of trials.”  This note is focused on expanding what prosecutors believe justice entails during the plea-bargaining process.  Unlike theories of plea-bargaining that state the goal to be the “highest deserved punishment the prosecutor could obtain on a plea,” this note focuses on how prosecutors can ensure that the lowest deserved punishment possible to achieve justice is imposed in order to preserve a defendant's right to liberty.

To achieve this goal, the note attempts to explain what factors individual prosecutors consider when plea bargaining. If provided a framework, prosecutors are capable of evaluating the multiple considerations that would be relevant in attempting to maximize the public good.  This note operates from the premise that it is possible, and perhaps preferable, to transform the culture of prosecutors’ offices from the ground up.  In order to contextualize the way these factors would be considered, it is important to understand the amount of prosecutorial discretion possessed by individual prosecutors.  As such, this note explores the scope of prosecutorial discretion in plea bargaining.  First, the note considers the scope of prosecutorial discretion possessed by individual prosecutors within the context of office customs, office policies, ethical obligations and laws. The note then outlines a framework of factors a prosecutor might consider in deciding what plea deal to offer including the completeness of information, purposes of punishment, the defense counsel, reasons a defendant might plead guilty besides factual guilt, and impacts of punishment on the legitimacy of law.  This is the first academic paper to suggest that line prosecutors themselves attempt to conduct a multi-factored analysis in determining what plea deal should be offered is necessary and that the plea deal should be distinct from the sentence that might be offered at trial given the lack of procedural safeguards.

June 25, 2017 at 11:27 PM | Permalink


The Rules of Conduct should add a fiduciary duty to the list of prosecutor special duties. The prosecution and the plea should not be motivated by personal advantage.

Do not spend $2 million prosecuting Martha Stewart on a $40,000 insider trading beef and on lying to the FBI in an informal conversation in her home, in order to get your name in the papers. That prosecutor should have lost his law license.

End all prosecutorial tort immunities, or failing to pass a constitutional amendment, force all prosecutors to waive their immunity if they want to keep their jobs in the executive branch. Tort liability would allow the specialty to police itself through standard of professional due care analyses by the courts. Let them all carry liability insurance as everyone else does.

Prosecutors should also be liable for discretion errors resulting in damage to crime victims, again in accordance to professional standards.

The carelessness of prosecutors fully qualifies for strict liability. But, they are so bad, such a standard would end prosecutions and bankrupt government. They fail to prosecute 95% of serious crime. When they have a guy, 20% of the time they have the wrong guy. That is also true in $million budget, death penalty cases. Worse, they have forced the wrong guy to accept a plea deal. In the case of the $million budget death penalty case, they get the wrong guy to confess to the murder in 25% of exonerated cases. They fed him details of the crime only the murderer would know.

Prosecutors have to be the most failed group of specialists in the entire nation. Maybe, public defenders have a worst record. Those are totally useless.

Posted by: David Behar | Jun 26, 2017 7:59:52 AM

Hardly a mention of the obligation to faithfully execute the law and no mention that the Legislature sets the punishment and writes the rules that inform its application across a range.

We don't get to unilaterally decide punishments. While we have the practical ability to do so in an most individual cases, that power should be exercised using the standards set by the Legislature, not our own personal sense of justice.

Posted by: David | Jun 26, 2017 10:11:59 AM

David. Because of the utter failure to control crime, each crime prosecuted must stand in for the 20 not prosecuted. The sentence must reflect the utilitarian doctrine that only incapacitation has any value to the tax payer and to crime victims. It is the sole benefit of prison.

Therefore the sentence should reflect the nature of the defendant. A murderer might be allowed to go home. And a shoplifter should be executed, depending on status. This is not a forward looking decision. This decision is based on the past conduct of the defendant, convicted and not convicted. So a mass murdering drug kingpin should be executed for shoplifting, while we have him.

Mandatory, legislated sentences for specific crimes are retributionist, come from the Bible, and violate the Establishment Clause, as sentences from the Sharia might.

Posted by: David Behar | Jun 26, 2017 11:10:29 AM

I think most prosecutors do engage in a multi-factor analysis considering the following factors (even if the analysis is informal rather than formal: First, what is the criminal history of this defendant? Second, are there other issues (drug use, lack of job skills or education, mental health issues) that are possible contributing factors to the crime? Third, is this crime violent or non-violent (however, the office defines those terms)? Fourth, what is the strength of the case? Fifth, what is the range of punishment in the statute? Sixth, what is the typical sentencing practices of the judge hearing the case?

The first three factors look at the danger to the community and the chances for rehabilitation. For first-time offenders who commit non-violent offenses, many prosecutors are willing to use probation as a "triage" system to separate those willing to reform (and to get them whatever help they need to reform) from those who refuse to change and are likely to become repeat offenders. The other three factors look at likely outcome after trial.

Posted by: tmm | Jun 26, 2017 11:46:53 AM

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