Cynthia Alkon (Texas A&M University School of Law) has posted Hard Bargaining in Plea Bargaining: When Do Prosecutors Cross the Line? (Nevada Law Journal, Vol. 17, No. 2, 2017) on SSRN.
Here is the abstract:
Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can also lead defendants to fail to litigate issues, such as search and seizure motions. Finally, the coercive atmosphere in plea bargaining can lead defendants to accept bad deals as they try to avoid potentially much higher sentences after trial.
This article argues that the U.S. Supreme Court should limit prosecutorial hard bargaining tactics in plea negotiations to better protect defendants’ right to counsel. In 2012, the U.S. Supreme Court, in Lafler v. Cooper and Missouri v. Frye, held that there is a constitutional right to effective assistance of counsel in plea bargaining. This article argues that Lafler and Frye demand that the Court restrict prosecutorial hard bargaining behavior that interferes with defense lawyers’ ability to do their jobs and thereby deprives defendants of their constitutional right to counsel. Other areas of law, notably labor law, prohibit hard bargaining. Under the National Labor Relations Act, unions and companies are required to bargain in good faith. Courts have held that some types of hard bargaining act to undermine the representation role of the union and are, therefore, a violation of the duty to bargain in good faith. This article will suggest that one way to argue the Supreme Court should limit prosecutorial hard bargaining is that allowing unrestricted prosecutorial hard bargaining undermines the representation of counsel and thereby prevents effective assistance of counsel in plea bargaining. This article also gives specific examples of what kinds of prosecutorial hard bargaining tactics should be restricted to better protect defendants’ constitutional rights in the plea bargaining process.