Monday, September 28, 2015
Many criminal justice advocates have heralded Lafler v. Cooper and Missouri v. Frye as game changers when it comes to plea bargaining law. My interest is in shifting the focus somewhat. Lafler and Frye certainly signal an increased attention to the regulation of defense counsel in criminal cases, as did an earlier case, Padilla v. Kentucky. But what about prosecutors? For the most part, prosecutors remain under-examined and under-regulated. Put differently, the problem brought to the fore in Lafler and Frye — the failure of defense counsel to properly advise their clients of plea offers — is not the only problem in this new, old world of negotiated pleas. With Lafler and Frye, there will now be more judicial oversight of defense counsel when it comes to plea negotiations. But if judges are watching defense counsel, who is watching prosecutors?
This symposium essay makes the argument for more regulation of prosecutors during the plea bargaining stage. I suggest that the next goal of “plea-bargaining” law should be to remedy this lack of oversight, and offer the Due Process Clause, and to a lesser extent internal and external regulation, as one possible route for getting there.