Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops

ABSTRACT American criminal procedure developed on the assumption that grand juries and petit jury trials were the ultimate safeguards of fair procedures and accurate outcomes. But now that plea bargaining has all but supplanted juries, we need to think through what safeguards our plea-bargaining system should be built around. This Symposium Article sketches out principles for redesigning our plea-bargaining system from the ground up around safeguards. Part I explores the causes of factual, moral, and legal inaccuracies in guilty pleas. To prevent and remedy these inaccuracies, it proposes a combination of quasi-inquisitorial safeguards, more vigorous criminal defense, and better normative evaluation of charges, pleas, and sentences. Part II then diagnoses unfair repercussions caused by defendants' lack of information and understanding, laymen's lack of voice, and the public's lack of information and participation. To prevent and fix these sources of unfairness, it proposes ways to better inform pleas and to make plea procedures more procedurally just. TABLE OF CONTENTS INTRODUCTION I. ENSURING FACTUALLY, LEGALLY, AND MORALLY ACCURATE PLEAS A. Sources of Inaccuracy 1. Factual and Legal Inaccuracy 2. Normative Inaccuracy B. Promoting Accuracy Early On 1. Inquisitorial Measures 2. More Vigorous Defense 3. Better Normative Evaluation II. FAIRNESS: IMPROVING UNDERSTANDING, TRANSPARENCY, AND PARTICIPATION A. Sources of Unfairness 1. Defendants' Lack of Information 2. Defendants' Lack of Understanding 3. Laymen's Lack of Voice 4. Opaque, Insular Criminal Justice B. Reforms / Solutions 1. Better-Informed Pleas 2. Procedural Justice CONCLUSION Because ours "is for the most part a system of pleas, not a system of trials," it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.... "[P]lea bargaining ... is not some adjunct to the criminal justice system; it is the criminal justice system." --Justice Anthony Kennedy, Missouri v. Frye (1) INTRODUCTION American criminal justice is badly misshapen. Over the centuries, Anglo-American jurists have constructed elaborate procedural safeguards around grand and petit juries. (2) Juries, and especially jury trials, were supposed to ensure fair process, accurate outcomes, and checks on abuse of power. (3) Thus, judges felt little pressure to superintend evidence gathering or assess each side's stories before or at trial. (4) Our legal system put its faith in adversarial proceedings that culminated in vigorously fought trials, at which the collision of truth and error would ensure that factual, legal, and moral justice won out. While the shell of an adversarial system remains, the core has been hollowed out. Plea bargaining began as a way for a few indisputably guilty defendants to resolve their cases quickly, saving everyone the time and expense of getting to a foreordained conclusion. (5) But the exception has swallowed the rule. Today, roughly 94 percent of adjudicated felony defendants plead guilty; only about 4 percent enjoy jury trials, and the rest have bench trials. (6) In misdemeanor cases, the disparity is even starker, with 99 percent or more pleading guilty. (7) Though petit juries are not quite extinct, they are an endangered species. To use John Langbein's example, petit juries are about as representative of New York's criminal courts as the hippopotamus in the Bronx Zoo is representative of New York City's wildlife--curious, anomalous spectacles. (8) This plea-bargaining system was not planned, but jury-rigged. It grew up below the radar as a workaround that served all the insiders' interests. (9) Because it was supposed to be exceptional, no one bothered to build many safeguards into the process. (10) The few safeguards that exist are largely designed to ensure the centrality of jury trials. …