In many states there are few restrictions on judges participating in plea bargaining. Those states essentially treat judicial participation much like they do when judges try to help parties settle civil or family law matters. Even with the advent of alternative dispute resolution there remain critics of judges who are not adept at fostering settlement of cases. Yet, when it comes to criminal law there is a distinctly different attitude. Federal judges by and large do not participate and there are states that take a similar approach. Now the United States Supreme Court will, at least for federal courts, give some guidance.

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal.  The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out.   The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.