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THE HIDDEN LAW OF PLEA BARGAINING

While rambling around on this i bumped into one you may be interested in. It's very long. I've only
read about twice what i'm posting here. Editing references out below became too much like work:

Andrew Manuel Crespo

The American criminal justice system is a system of pleas. Few who know it well think it is working. And yet, identifying plausible strategies for law reform proves challenging, given the widely held scholarly assumption that plea bargaining operates “beyond the shadow of the law.” That assumption holds true with respect to substantive and constitutional criminal law—the two most studied bodies of law in the criminal justice system—neither of which significantly regulates prosecutorial power. The assumption is misguided, however, insofar as it fails to account for a third body of law—the subconstitutional law of criminal procedure—that regulates and often establishes the very mechanisms by which prosecutorial plea bargaining power is both generated and deployed.

These hidden regulatory levers are neither theoretical nor abstract. Rather, they exist in strikingly varied forms across our pluralist criminal justice system. This Article excavates these unexamined legal frameworks, conceptualizes their regulatory potential, highlights their heterogeneity across jurisdictions, and exposes the institutional actors most frequently responsible for their content. In so doing, it opens up not only new scholarly terrain but also new potential pathways to criminal justice reform.
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* Assistant Professor of Law, Harvard Law School. For their thoughtful and helpful comments, I am grateful to Amna Akbar, Nicholas Bagley, Rabia Belt, Nikolas Bowie, John Goldberg, Elizabeth Kamali, Orin Kerr, Michael Klarman, Genevieve Lakier, Adriaan Lanni, Benjamin Levin, Anna Lvovsky, John Manning, Justin Murray, Eve Brensike Primus, John Rappaport, Daphna Renan, Abigail Shafroth, Jocelyn Simonson, Sonja Starr, Carol Steiker, ImeIme Umana, Alex Whiting, Crystal Yang, and the participants in the Harvard Law School Criminal Justice Workshop, the Harvard Law School Faculty Workshop, the University of Chicago Law School Constitutional Law Workshop, the University of Michigan Law School Legal Theory Workshop, the George Washington University Law School Faculty Workshop, and the Brooklyn Law School and St. John’s University School of Law Junior Scholars Criminal Justice Roundtable.
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INTRODUCTION

THE HIDDEN LAW OF CHARGE BARGAINING PILING ON
Charge Piling: The Law of Joinder and Severance
Case Piling: The Law of Serial Prosecutions
Sentence Piling: The Law of Cumulative Punishment
OVERREACHING
Factual Overreaching: The Law of Pretrial Evidentiary Review
Legal Overreaching: The Law of Summary Dismissal and Bills of Particulars
Equitable Overreaching: The Law of Equitable Dismissal
SLIDING DOWN
Charge Sliding: The Law of Amendment and Dismissal
Verdict Sliding: The Law of Lesser Offenses
THE HYDRAULICS AND THE POLITICS OF REFORM
The Hydraulics of Reform: Assessing Hidden Law’s Potential Impact
The Politics of Reform: Plea Bargaining’s Hidden Lawmakers

CONCLUSION
APPENDIX

Introduction [inside, references are down the side but they copied among
the sentences below. Had to omit them here to make the reading easier. ]

Plea bargaining, we are told, is lawless. It “evolved in the unregulated interstices of our criminal justice system.” And it continues to be driven not by law but by power—the vast, unregulated power of prosecutors. As plea bargaining scholars have long recounted, prosecutors’ ability to threaten inflated sentences, combined with their power to trade those sentences away for pleas of guilt, allows them to control “who goes to prison and for how long.” As for law, it has abandoned, on this account, its most basic function: channeling prosecutorial power through regulatory constraints. Substantive criminal law, after all, now penalizes so much conduct, so severely, and so many times over that it serves simply to delegate power to prosecutors, transforming them into administrators of an “unwritten criminal ‘law’ that consists only of [their own] discretionary decisions” to charge certain offenses or to offer certain deals. Meanwhile, the constitutional law of criminal procedure that is ostensibly designed to regulate state power imposes virtually no constraints on prosecutors’ plea bargaining practices at all. Thus, the conventional account: Plea bargaining operates “outside the law’s shadow,” governed instead only by brute prosecutorial power that is exercised in ways “not usually written down anywhere,” let alone “governed by formal legal standards.”

Against this received wisdom, this Article offers a different account. Plea bargaining, it contends, appears lawless only if by “law” one refers to those two familiar legal pillars of the American criminal justice system—substantive and constitutional criminal law—that together consume aca­demic discussions, in classrooms and in legal scholarship alike. Beyond those twin pillars, however, lies a third, unseen but essential body of law that has long been obscured by some of criminal justice scholarship’s most familiar blind spots: It is a creature primarily of state law (not federal law), of court rules and statutes (not constitutional doctrine), and of procedures often seen as relevant only to a bygone era of trial-based litigation (not to the system of pleas that has replaced it). And yet, as this Article will show, it is this subconstitutional state law of criminal procedure—the hidden law of plea bargaining—that time and again establishes the mechanisms and legal frameworks through which prosecutorial plea bargaining power is generated and deployed.

Take, for example, charge bargaining, the primary mechanism by which prosecutors control defendants’ sentencing exposure, and with it the so-called trial penalties defendants face if they dare refuse a prosecutor’s invitation to plead guilty. Long criticized as an illicit form of coercion, charge bargaining presents a conundrum under the traditional scholarly account: Given the breadth and depth of substantive criminal law, charge bargaining is routinely diagnosed as a major driver of plea bargaining’s pathology; but given prosecutors’ constitutional authority—indeed, their responsibility—to select the charges a defendant will face, it is also seen as an inevitable feature of criminal law’s administration. If one looks beyond substantive and constitutional criminal law, however, charge bargain­ing’s power dynamics become far more complex, for the essential particulars of the practice—ranging from the number of charges the prosecutor can file, to their severity, to their relationship to the defendant’s sentencing exposure, to the ease with which they can be traded away—all directly impact just how much leverage the prosecutor truly has. And crucially, those particulars are in turn dictated by the subconstitutional procedural law of the states—an interlocking set of legal frameworks that comprises the law of joinder and severance, the law of preclusion, the law of cumulative sentencing, the law of pretrial charge review, the law of dismissal and amendment, and the law of lesser offenses.

Almost entirely unexamined in existing plea bargaining literature, these hidden legal frameworks address issues that every system of criminal justice administration simply must resolve as it determines, for example, how many charges can be filed in a given case, or whether the sentences associated with those charges will run concurrently or consecutively. And yet, the answers to these inescapable questions, while necessarily shaping prosecutorial power, are neither hardwired nor predetermined. Rather, the choice of which procedural regime to adopt—from a range of potential options—inherently, if often implicitly, presents an important policy choice about how prosecutorial plea bargaining power ought to be structured.

https://columbialawreview.org/content/the-hidden-law-of-plea-bargaining/