Judicial Power to Regulate Plea Bargaining

Plea bargaining in the United States is in critical respects unregulated, and a key reason is the marginal role to which judges have been relegated. In the wake of Santobello v. New York (1971), lower courts crafted Due Process doctrines through which they supervised the fairness of some aspects of the plea bargaining process. Within a decade, however, U.S. Supreme Court decisions began to shut down any constitutional basis for judicial supervision of plea negotiations or agreements. Those decisions rested primarily on two claims: separation of powers and the practical costs of regulating plea bargaining in busy criminal justice systems. Both rationales proved enormously influential. Legislative rulemaking and state courts both largely followed the Court in excluding judges--and in effect, the law from--any meaningful role. This Article challenges these longstanding rationales. Historical practice suggests that separation of powers doctrine does not require the prevailing, exceedingly broad conception of exclusive executive control over charging and other components of the plea process. This is especially true in the states, many of which had long traditions of private prosecutors and judicial oversight over certain prosecution decisions, as well as different constitutional structures. By contrast, English courts based on both common law and legislation retain some power to review such decisions. Moreover, assertions that legal constraints on plea bargaining would fatally impair the efficiency of adjudication is belied by evidence of very high guilty plea rates both in England, where bargaining is more regulated, and in U.S. courts before the Supreme Court closed off meaningful grounds for judicial review

Plain Meaning, Practical Reason, and Cuplability: Toward a Theory of Jury Interpretation of Criminal Statutes

In one of the few existing recordings of American juries deliberating in an actual criminal case, Wisconsin v. Reed, we observe jurors struggling with how they should apply a statute in a case in which the facts are not in real dispute. The defendant is charged with felon in possession of a gun, and all agree that he has a felony record and owned a pistol until he turned it over to the police upon their request. The statute contains three elements. The defendant must (a) have a felony conviction, (b) have possessed a gun, and (c) have known that he possessed the gun. Despite the apparent simplicity of the case, the jurors deliberate for two hours and acquit. Their deliberations include some intriguing, and perhaps worrisome, statements. I think we have more capabilities than to say, one-two-three, these are met on a very simple level. I don\u27t think, as jurors, that is necessarily our role, says one juror. Is he a threat to society? - And if we decide he\u27s guilty, is that just? another asks. What about sending a message? I\u27m thinking of a message I\u27d like to send to the DA\u27s office. In the latter part of the discussion, jurors struggle to interpret this simple statute. I\u27m having trouble with that word \u27gun,\u27 but I\u27m really having trouble with this word \u27to know,\u27 says one. Perhaps he didn\u27t, in the full sense of the word, know he possessed a firearm, suggests another. The Reed jury\u27s acquittal is often described as nullification. Yet the deliberation reveals jurors engaged in an extended, thoughtful, and - I will argue - necessary effort of statute application. Seen as a project of statutory interpretation, the deliberation raises the interesting issue of whether jurors interpret statutes in a manner that at all resembles the well-studied strategies of judicial statutory interpretation. The considerations that these jurors raise, it turns out, mimic concerns familiar from judges\u27 construction of statutes. If jurors are sometimes led into complex interpretive debates, what prompts this? Many would probably respond that untrained, undisciplined jurors are inclined to exceed the mandate that limits them to applying the law to the facts they find. Yet we already know from the voluminous literature of statutory interpretation and from earlier, legal-realist insights that application can be a complicated, value-laden, and ambiguous task rather than a rote, mechanical one

Factually Baseless Enforcement of Criminal Law is Okay. Full Enforcement is Not.

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