Perhaps we should just rename plea bargaining…we can call it Criminal Court Alternative Dispute Resolution…and with that change there will be a whole new acceptance of the practice. In the meantime, Charlie Gerstein has posted Plea Bargaining and Prosecutorial Motives (15 U.N.H. L. Rev. 1 (2016)) on SSRN.
Here is the abstract:
This Article argues that the structure of the plea-bargaining system — which the Supreme Court recently recognized “is the criminal justice system” — hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed with an understanding of the dormant disclosure obligation, this Article then addresses tricky issues surrounding this problem and, in doing so, exposes the centrality of prosecutorial motives, which existing scholarship has not addressed. A full understanding of the role of prosecutorial motives in the plea-bargaining system solves several existing doctrinal puzzles — chief among them whether defendants can waive their right to disclosure — yields workable definitions of concepts like “impeachment” and “materiality,” and addresses issues that go to the heart of the plea-bargaining system.