In Santobello v. New York, Chief Justice White described plea bargaining as “an essential component of the administration of justice” because of how dramatically it reduced costs on “judges and court facilities.” Maybe that was true in 1971 when Santobello was decided. But, today, it is a myopic way of accounting for the costs of plea bargains. On a case-by-case basis, a plea bargain saves the expense of a trial. System-wide, the increased prevalence of plea bargaining has exploded the costs of the criminal legal system. Instead of banking the resources saved by avoiding trials, the efficiencies of plea bargaining created a vacuum. So many defendants have been sucked in that at this point, Michelle Alexander points out, it would be impossible to try them all. The expansive number of people prosecuted, and consequently, the number of people supervised and incarcerated, is responsible for mass incarceration, mass supervision, mass trauma, and scores of broken families—these are the real costs of plea bargaining.

What to do? The simplest solution would be to eliminate plea bargaining altogether—to force every case to trial by law or by widespread refusal to accept plea offers. However, this might backfire: further expanding the criminal legal system as it morphed to facilitate more trials.

There is no shortage of opportunity to try out alternative solutions. There are fifty states, and, within each one, dozens of county and local court systems. When trying to fix a problem as complex as our country’s broken criminal legal system, this diffusion is an asset—it enables each jurisdiction to act as a “laboratory of democracy.” We should try out many ideas, rigorously evaluate their impacts, stick with the ones that work, and throw out the others. To that end, here is my contribution to the pile of options for local policymakers to choose from.

I propose that before trial, a defendant interested in taking a plea may call for a Community Plea Proposal Panel (CPPP) to make him or her an offer. CPPPs take advantage of the expedited process and informality of the plea-dominated status-quo, but with a critical adjustment: empowering communities that best know the harms caused by crime and the effects of criminal sentences, rather than prosecutors, to craft the offer. CPPPs represent a return to first principles: moving review by a jury of one’s peers to the most critical phase in the modern criminal adjudication process.

Here is a brief outline of how CPPPs could work:

  • Panels of about ten members are randomly drawn from a geographically compact area around where the alleged crime occurred.
  • A prosecutor addressing the panel briefly recites the facts that she deems appropriate, including what is alleged to have occurred and the defendant’s criminal history. She may also suggest the charges and sentence she feels would be appropriate.
  • The defendant (or his/her attorney) may then present mitigating circumstances and an alternative set of charges and sentence.
  • The CPPP then deliberates and makes a plea offer that the court must accept if the defendant does. This is a one-shot deal; there is no subsequent negotiation. If the defendant declines the offer, he or she may proceed to trial.

Supplanting professional prosecutors with community members as the crafters of more than 90 percent of criminal dispositions should greatly reduce the harshness of our criminal legal system. Currently, the power to determine the terms of the plea bargain is effectively lodged solely in the prosecutor. And, critically, prosecutors are predisposed to be harsh. This is in part a consequence of psychology: prosecutors see only one side of the story. Thus, they are likely to be overly confident. They are also set up to be unsympathetic to the defendant, whom they know only from their rapsheet and allegations against them. Moreover, prosecutors are traditionally selected for aggressiveness and competitiveness. Incentives within the prosecutor’s office encourage harshness, and prosecutors typically do not reflect the racial, socioeconomic, and geographic characteristics of the people they prosecute.

Compared to professional prosecutors, CPPPs are likely to be less harsh. After listening to both the prosecutor and defendant, they are not susceptible to confirmation bias. Because of the geographic concentration of crime, the CPPP members are especially likely to have been affected by the overly harsh criminal legal system themselves or to have been victims of crime—both groups, surveys show, are more likely to favor alternatives to long prison sentences and burdensome monitoring.

CPPPs also facilitate direct democratic participation. Control over plea offers allows the community to decide which laws to enforce and how. For example, CPPPs may decline to penalize certain conduct entirely. Moreover, civic participation is itself a virtue. It enhances representation in the legal system and may have positive spillover effects, increasing participation in other civic functions like voting and traditional jury service.

Finally, there are benefits to having the community engage directly with defendants. CPPPs offer responsible parties a chance to face the people they harmed—and even if they do not face the exact same people, restorative justice programs with surrogate victims suggest that the beneficial effects of accountability can be gained through meetings with appropriate substitutes. Because of the racial and class homogeneity of most communities, there is reduced risk that the defendant will face “out-group” prejudice, explicit or implicit. The community is also better positioned to understand the circumstances of a particular offense: for example, should selling drugs on a particular corner qualify for a school-zone enhancement? Most important, CPPPs can craft sentences and treatment plans to the community’s needs and resources. Community members can best identify a defendant’s needs and the community resources available, and match them appropriately.

The proposal has drawbacks. First, CPPPs would likely increase costs in the short term by requiring more resources be devoted to each case. This increase may be partially offset by reduced pre-trial litigation: nuanced evidentiary issues would be less salient to a CPPP than to a prosecutor. And in the long term, savings from reduced penalties should dwarf CPPPs’ costs. Second, it would be difficult to decide rules for CPPP presentations that balance informality with constitutional protections for defendants. Third, while many crimes are committed by members of the community and many communities are homogeneous, there are plenty of exceptions. CPPPs may be unduly harsh to an outsider. This concern could be mitigated in part with procedural protections; for instance, defendants could waive their right to a CPPP and take their offer straight from a prosecutor. Fourth, CPPPs could make inconsistent offers. It would be bizarre if the CPPP sitting Tuesday refused to punish drug crimes, while the one sitting Thursday did not. In context, however, this problem is less concerning. Currently, pleas’ terms are dictated by the individual prosecutor randomly assigned to each case. CPPPs may end up enhancing consistency because they are drawn from geographically compact areas and include the views of more than one individual.

This CPPP proposal draws from a guiding principle of restorative and transformative justice: in most criminal cases, the central focus should not be determining guilt or innocence, but addressing the harm caused and creating a path to ameliorating it. Granted, as I describe them, CPPPs are far from a transformative justice ideal. On the surface, this proposal slides CPPPs largely within the existing criminal justice apparatus, changing little other than who formulates plea offers. However, it embraces an important element underlying the transformative justice movement: putting the power and resources of the criminal legal system in the hands of the community and anticipating that this will reduce, even obviate, the need for criminal punishment and adjudication. Giving communities control over pleas empowers them to decide what to criminalize, what to consider a disease rather than a crime, and how to respond to harm when it is caused. CPPPs are a vehicle for transformative justice—a Trojan horse to disrupt the criminal punishment system from within.



Author’s Note: I am grateful to Professor Adriaan Lanni who encouraged me to study community-based criminal legal reforms. An early draft of this post was prepared for Professor Lanni’s Criminal Procedure, Adjudications course.