Civilizing Criminal Settlements

INTRODUCTIONMost cases today are resolved by settlement. Studies suggest that over ninety percent of criminal and civil cases settle before trial.1 This high rate of settlement is necessary, it is often said, to avoid overwhelming the judicial system.Although settlements are the norm in both the criminal and civil systems, the two systems facilitate settlements in extremely different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants.3 Multiple statutes create different crimes for similar misconduct, and the prosecutor has the power to pick which charges to bring against a defendant.4 Moreover, the sentences prescribed for defendants who are convicted after trial are extremely high. These high penalties are, in some instances, legislatively designed to impose the appropriate punishment only when discounted for guilty pleas. Accordingly, a prosecutor seeking to secure a guilty plea may exert significant pressure on a defendant to enter the plea by charging the defendant with an array of crimes with high sentences, and then offering to reduce or dismiss various charges in exchange for a defendant waiving her right to a trial and all of the procedural protections associated with that trial. These advantages give prosecutors the ability virtually to force defendants to enter into plea bargains.The civil system facilitates settlement in a very different way.5 It does not seek to induce settlements by giving the plaintiffthe power to recover disproportionate damages upon a jury verdict. With few exceptions, plaintiffs may recover only compensation for their harms. Instead of handing one side a bludgeon, the civil system encourages settlement through various procedures. Some of these procedures, such as rules requiring alternative dispute resolution, directly encourage settlement. Others, such as motions for summary judgment and pretrial conferences, facilitate settlement more indirectly. They do so in at least four ways. First, they improve the parties' access to information about their adversaries' case to allow for more informed bargaining. Second, they provide opportunities for the judge or another neutral arbiter to preview her view of the merits to help debias the parties' views of their case. Third, they increase the costs of litigation such that avoiding further procedure saves money for both sides and creates a bargaining range. Fourth, they create moments in which attorneys from both sides simultaneously focus on the case. In addition to facilitating settlements, these procedures help avoid trials by screening out meritless cases, thereby alleviating pressure on defendants to settle the "wrong" cases.The criminal system does not have similar procedures. Most jurisdictions provide no procedures, such as arbitration or mediation, to encourage or facilitate plea bargaining.6 To the contrary, many jurisdictions, including the federal system, bar judicial involvement during plea negotiations.7 Nor do criminal systems generally provide for broad exchanges of information or have procedures, such as summary judgment, that help to debias the parties and force them to assess the strength of their case. The criminal system also lacks effective mechanisms to screen out meritless cases prior to trial.These deficiencies make the criminal system inferior to the civil system in the way that it produces settlements. For one thing, the criminal system fails to facilitate informed settlements. For another, the criminal system regularly forces defendants to settle meritless cases or proceed to trial and risk substantially greater sentences. Rather than facilitating settlements based on the crimes defendants committed and the strength of the evidence against them, the criminal system essentially allows prosecutors to choose the terms of settlement.8 Because prosecutors have so much leverage, defendants often find themselves unable to turn down even poor settlement terms and proceed to trial. …