Recognizing a defendant’s right to a fair plea bargain offer from the prosecution

Plea bargains dominate criminal justice systems. In the US, 97% of convictions in federal criminal proceedings and 94% in state proceedings are obtained through the rapid path of plea bargain → confession → conviction, without inquiry into whether the defendant actually committed the offense he was charged with and without a trial in which witnesses are heard and evidence presented. The US Supreme Court held that, although a defendant has a right to effective representation by counsel during plea negotiations, the prosecution has no duty to offer a plea bargain, and its discretion on this matter is unrestricted. Prosecutorial discretion is almost absolute: a prosecutor who happens to dislike the defendant or is antagonistic because of the defendant’s group affiliation or political opinions, or is simply harsher than his colleagues, may lawfully offer an excessively severe plea or refuse to negotiate entirely. Conversely, an offer may be unusually lenient merely because the prosecutor is a former law-school friend of the defense counsel. The current system imposes no constraint on the prosecution and grants no right to the defendant. The article proposes that the plea offer should not depend on prosecutorial whim but constitute a right grounded in the principles of equality and proportionality, in the right to due process, and in the duties of fairness and good faith of the prosecution; and suggests practical mechanisms for recognizing and enforcing this right. Formally, defendants possess rights in criminal proceedings—some even enshrined in the US Constitution, but in most cases, that conclude in plea bargains, defendants effectively have no rights. Ideally, mainly due to the phenomenon of false convictions, the plea—bargaining system should be abolished or at least drastically curtailed. As this is unlikely to happen, there should be at a minimum a legally enforceable right, preferably statutory, alternatively judicial, that ensures fairness in a process that has become the default mode of adjudication. Even those who support plea bargaining may endorse recognition of such a right, as it would render current practice somewhat more legitimate.