Thus, the conventional account: Plea bargaining operates “outside the law’s shadow,” 7 7 2049, 2054–56 (2016) (discussing the “regulatory jurisprudence” of constitutional criminal law). Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. 463, 469 (2016) (“In a world of guilty pleas, the prosecutor’s determinations of what to charge and what bargain to offer are the ball game, yet the case law regulates this process only minimally.”) cf. See infra Parts II–IV see also Adriaan Lanni & Carol Steiker, A Thematic Approach to Teaching Criminal Adjudication, 60 St. Meanwhile, the constitutional law of criminal procedure that is ostensibly designed to regulate state power imposes virtually no constraints on prosecutors’ plea bargaining practices at all. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. Substantive criminal law, after all, now penalizes so much conduct, so severely, and so many times over that it serves simply to delegate power to prosecutors, transforming them into administrators of an “unwritten criminal ‘law’ that consists only of discretionary decisions” to charge certain offenses or to offer certain deals. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 50–51 (1969) (asserting that “he goal of the rule of law” should be “to distinguish between necessary discretionary power and unnecessary discretionary power,” “to find effective ways to control” the former, and to “cut back” on the latter) Sklansky, supra note 2, at 489 (“he more discretion that prosecutors have, the greater will be the concern, generally speaking, about the power they exercise and vice versa.”). CloseĪs for law, it has abandoned, on this account, its most basic function: channeling prosecutorial power through regulatory constraints. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 Harv. CloseĪs plea bargaining scholars have long recounted, prosecutors’ ability to threaten inflated sentences, combined with their power to trade those sentences away for pleas of guilt, allows them to control “who goes to prison and for how long.” 3 3 Miller, Domination and Dissatisfaction: Prosecutors as Sentencers, 56 Stan. ‘almost limitless discretion’ and ‘virtually absolute power.’” (first quoting Erik Luna & Marianne Wade, Prosecutors as Judges, 67 Wash. & Criminology 473, 480–81 (2016) (“The starting point for virtually every discussion of prosecutors in the United States is their . . . See David Alan Sklansky, The Nature and Function of Prosecutorial Power, 106 J. CloseĪnd it continues to be driven not by law but by power-the vast, unregulated power of prosecutors. 511, 516 (2016) (“American criminal justice backed into plea bargaining, and formal law has long been ambivalent about it.”). Kenneth Kipnis, Criminal Justice and the Negotiated Plea, 86 Ethics 93, 95 (1976) see also William Ortman, Probable Cause Revisited, 68 Stan. It “evolved in the unregulated interstices of our criminal justice system.” 1 1 Plea bargaining, we are told, is lawless. In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform. This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content. Rather, they exist in strikingly varied forms across our pluralist criminal justice system. These hidden regulatory levers are neither theoretical nor abstract. The assumption is misguided, however, insofar as it fails to account for a third body of law-the subconstitutional law of criminal procedure-that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law-the two most studied bodies of law in the criminal justice system-neither of which significantly regulates prosecutorial power. Few who know it well think it is working. The American criminal justice system is a system of pleas.
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