Plea Bargaining

The discretionary power exercised at the charging and plea-bargaining stages often overshadows formal doctrines of criminal law, raising concerns about fairness, accountability, and consistency. While some view such discretion as leniency, in practice it often serves as a mechanism for rationing punishment in a system that legislates draconian penalties far beyond what can or should be enforced. This creates what scholars term a “trial penalty,” where refusing a plea deal can lead to vastly harsher sentences. Prosecutorial decisions are guided by open-ended standards, such as those in the ABA guidelines, which include factors like evidentiary strength, harm caused, proportionality of punishment, and collateral consequences. However, these standards are largely unenforceable and susceptible to bias. The lack of transparency and external oversight means that decisions about who faces charges and on what terms often escape meaningful review, while systemic issues like racial disparity and political pressures remain largely unaddressed.

Policy implications flow from this concentration of unchecked discretion. On one hand, flexibility may be necessary to mitigate the rigidities of overcriminalization and mandatory sentencing. On the other hand, without clearer standards, robust internal review, and mechanisms for public accountability, prosecutorial discretion risks becoming an arbitrary system of selective justice. Reform proposals include publishing charging guidelines, creating independent oversight bodies, and recalibrating statutory frameworks to reduce reliance on prosecutorial leniency as a systemic safety valve. Ultimately, any serious engagement with substantive criminal law must account for these discretionary practices, because they do not merely implement doctrine—they redefine its operation in practice.