Prosecutorial Power and Plea-Based "Justice"
As Angela J. Davis has explained, prosecutors are the most powerful players in the criminal justice arena. Prosecutors enjoy enormous discretion in deciding who to prosecute and how harshly. The criminal law does not obligate a prosecutor to do anything. Instead, it creates an array of choices from which the prosecutor may select. The metastasizing of criminal offenses offers a smorgasbord of options. There are so many criminal offenses on the books in most places that a prosecutor often can easily charge two or three offenses for conduct that most lay people would consider a single crime. The plea-based model of criminal justice that dominates the American system enhances this power.
Though high-profile jury trials capture national attention and drive public perception of what happens in “most” cases, the reality is quite a bit different. In 2017, 97.2 percent of criminal cases were resolved by plea. That total was down from 97.3 percent of cases resolved by plea in the preceding year. ( ) Bargaining can occur with regard to the charge, the sentence, or both. In a plea-based system, the prosecutor and defense attorney become the primary adjudicators of guilt. But the fact that the defense is a participant in the negotiation does not mean the bargaining power of the two sides is equal.
For a variety of reasons, prosecutors have the upper hand in plea negotiations. First, the decision of whether to negotiate at all is one vested entirely to the discretion of the prosecutor. If the prosecutor offers nothing, the defense has no right to force a concession. In the absence of a deal, the defendant's only options are to go to trial or plead to the indictment. Upon conviction, assuming the absence of mandatory minimums, the defendant is left to the mercy of the sentencing judge. This option is of limited appeal in cases where a long list of charges may result in considerable sentencing exposure.
For prosecutors inclined to negotiate, the initial array of charges they choose to file will establish the “opening offer” around which all negotiating occurs. And, in many cases, there is no scarcity of charging options. Increasing the number of charges brought provides prosecutors with chips to bargain away during the negotiating process. “Overcharging,” both vertically and horizontally, is a practice proscribed by the American Bar Association's Standards for Criminal Justice precisely because of the improper pressure it exerts. However, the breadth of the criminal law makes it nearly impossible to determine when a prosecutor is aggressively (but properly) papering a case and when a prosecutor is increasing the degree or number of charges for the sole purpose of increasing negotiating leverage. And though more empirical studies are needed, those writing in the field have found that prosecutors routinely charge offenses with little chance of success at trial or for relatively minor criminal conduct, all for the purpose of “sweetening” an inevitable plea offer.
Hand-in-hand with the prosecutor's discretion over charge selection is the reality that a prosecutor chooses which offenses to charge with full knowledge of the potential sentence each charge might carry following conviction at trial. At least one study of the federal system found that sentences following trial are 60 percent higher than sentences following a guilty plea. This substantial sentencing discount can be a powerful incentive for the accused to plead. Indeed, even in a case with relatively weak evidence of guilt, a prosecutor can offer a sufficiently steep sentencing discount to make pleading appear to be the only rational choice. In fact, in a perverse result, one study found that prosecutors exert the most pressure to plead, using tactics like steeply discounted sentences, in cases with the least likelihood of conviction at trial.
The prosecutor's charge selection can be particularly relevant to sentencing concerns in jurisdictions with so-called three-strikes laws. These laws impose harsh mandatory minimum sentences on third-time offenders even for relatively trivial convictions. In such jurisdictions, the prosecutor's willingness to charge an offense as (or accept a plea to) a misdemeanor instead of a felony allows the accused to avoid the severity of three-strikes sanctions. Even in non-three-strikes districts, the applicability of lengthy mandatory minimums, based on factors like threshold drug quantities or the presence of a weapon, can exert pressure to plead. In these cases, prosecutors can bargain away the counts requiring mandatories, meaning an accused who pleads will retain the possibility of shortening any sentence imposed through diminution credits and/or parole. The significant power of the prosecutor just described is further amplified by the Court's interpretation of the Fourth Amendment. This is because, not surprisingly, the prosecutor's power to negotiate is informed by the available evidence.
