Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective

There is a common perception that the plea bargaining process is not a judicial matter and therefore judges do not or should not participate in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged in the criminal plea bargaining process by statute or by case law. This Article briefly summarizes some of the issues with judicial participation in the plea bargaining process from a dispute resolution perspective, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea bargaining process and the creation of a neutral dispute resolution style bargaining perspective. Most importantly, it makes five recommendations for how states can involve judges in the plea bargaining process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.