Legal Profession Commons^™

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Russell D. Covey

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …