The Screening/Bargaining Tradeoff

Abstract

Both scholarly literature and public debate about plea bargaining embody a false dichotomy. Commentators err in assuming that criminal trials are the only alternative to plea bargains, and that fewer plea bargains lead inexorably to more trials. This paper offers a different choice, and points to prosecutorial screening as the principal alternative to plea bargains. Prosecutorial screening is a viable and significant alternative to living with the dishonesty of plea bargaining or mandating trials. The empirical heart of our paper studies charging data from New Orleans, where over the last three decades the New Orleans District Attorney emphasized early screening of cases and actively discouraged any changes of criminal charges as a result of negotiations after the charges are filed. This analysis confirms that a big city prosecutor can invest serious resources in early evaluation of cases and maintain this practice over the long run. All prosecutors screen cases. By prosecutorial screening we mean a structured charge selection process with four interrelated features: early assessment, reasoned selection, barriers to bargains, and enforcement. First, the prosecutor's office must make an early and careful assessment of each case, before the initial charge is filed. Second, the prosecutor's office should file charges only in provable cases that the office would generally want to result in a criminal conviction and sanction. Third, the office must severely restrict plea bargaining, and most especially charge bargains. Fourth, the office must create sufficient oversight and internal enforcement mechanisms to ensure reasonable uniformity in charging and relatively few changes to charges after they have been filed. A prosecutor who makes a realistic and early evaluation of the case will decrease in the number of negotiated guilty pleas, especially (and critically) charge bargains. Intense prosecutorial screening may produce a small increase in the number of trials, but the more substantial change would likely be an increase in the number of open pleas made without prior bargaining between the defendant and the prosecutor. A screening system that produces mostly open pleas avoids the dishonesty of plea bargaining when the offense of conviction does not match either the charges the state filed or the reality of the offender's behavior. Principled screening produces convictions that align as closely as possible with both the actual criminal behavior and the charges the prosecutor initially files. The prosecutor sends a single, consistent signal about the wisdom and worth of the case. Our study calls on every prosecutor to rethink how the office screens cases and how it explains its practices to the public. The screening/bargaining tradeoff should also become part of the political dialogue about the justice system, especially at election time. The public question should not be the conviction rate, but rather the ratio of as charged convictions to convictions.