SEEKING JUSTICE BY PLEA: THE PROSECUTOR'S ETHICAL OBLIGATIONS DURING PLEA BARGAINING.

• Author: Paciocco, Palma
• Position: Canada

Canadian Crown prosecutors enjoy tremendous discretionary power. They can leverage this power during plea bargaining by structuring the terms of plea deals and by engaging in aggressive negotiation tactics, thereby exerting a disproportionate influence on plea bargaining processes and outcomes. This article considers how Crowns should wield their power to shape plea bargains in light of their ethical obligation to seek justice. In particular, it considers how Crowns should identify the just case outcomes they will pursue through plea bargaining and assesses which bargaining strategies they should employ or eschew in pursuit of those outcomes. In the process, the article addresses a few especially thorny questions, including: whether Crowns should ever strategically overcharge defendants to facilitate plea negotiations; how Crowns ought to balance the accuracy of criminal charges against the fairness of criminal sentences when the two are in tension: and how Crowns can strike an appropriate balance between plea bargaining fairness and efficient case management. The article offers several concrete policy recommendations aimed at helping Crowns satisfy their ethical obligation to seek justice in the context of plea bargaining.

Les procureurs de la Couronne beneficient d'un pouvoir discretionnaire considerable. Ils peuvent tirer profit de ce pouvoir au moment des negociations sur le plaidoyer en utilisant des tactiques agressives, et en structurant les termes des accords sur le plaidoyer, exercant ainsi une enorme influence sur le processus et le resultat de negociations. Cet article discute l'exercice du pouvoir des procureurs de la Couronne et comment ceux-ci devraient l'utiliser pour faconner les negociations a la lumiere de leur obligation ethique de s'assurer que justice soit rendue. Cet article examine en particulier comment les procureurs de la Couronne devraient identifier les resultats consideres justes qu'ils poursuivront lors des negociations sur le plaidoyer et evalue les strategies de negociation qu'ils devraient adopter ou eviter pour atteindre ces resultats. L'article aborde au passage quelques questions particulierement epineuses, telles que de savoir comment determiner si les procureurs devraient toujours surcharger strategiquement les defendeurs pour faciliter les negociations sur le plaidoyer; comment les procureurs devraient etablir un equilibre entre la justesse des accusations criminelles et l'equite des peines criminelles lorsque les deux ne concordent pas; et comment les procureurs peuvent parvenir a un equilibre approprie entre un processus de negociation sur le plaidoyer equitable et une gestion efficace des ressources judiciaires. Finalement, l'article propose quelques recommandations de politiques publiques visant a aider les procureurs de la Couronne a satisfaire a leur obligation ethique de s'assurer que justice soit rendue dans le contexte des negociations sur le plaidoyer.

Introduction I. The Prosecutor's Power and Ethical Obligations During Plea Bargaining A. Prosecutorial Discretion and Plea Bargaining B. Prosecutorial Ethics ;uid Plea Bargaining II. Seeking Justice by Plea A. Just Outcomes B. Just Processes III. Plea Bargaining and Efficiency A. Better Screening B. Better Bargaining Conclusion Introduction

Some twenty-five years have passed since Robert E. Scott and William J. Stuntz made the startling yet indisputable claim that plea bargaining "is not some adjunct to the criminal justice system; it is the criminal justice system." (1) They were writing in the American context, but they could just as easily have been describing the Canadian criminal justice system. (2) Although precise statistics about the frequency of plea bargaining in Canada are unavailable, the Supreme Court has affirmed that "plea resolutions help to resolve the vast majority of criminal cases." (3) Many commentators concur that, without plea bargaining, "the administration of justice could not operate efficiently and would in fact grind to a halt." (4) Recently the Supreme Court expressed the view that, "Properly conducted, [resolution discussions, including plea bargains] permit the system to function smoothly and efficiently" (5)--a position that is shared by numerous Canadian courts. (6)

Despite its endorsement by courts and government officials, the practise of plea bargaining remains controversial among criminal justice practitioners and scholars. (7) Common objections to plea bargaining include: concerns that the practice is secretive and arbitrary; that it can result in disproportionately low or high sentences; that it can elicit guilty pleas from innocent people, thereby contributing to the scourge of wrongful convictions; and that it subverts trial rights and processes. (8) John Langbein has persuasively argued that "[w]e indulge in this practice of condemnation without adjudication because we think we have to, not because we want to.... Even among the proponents of plea bargaining, few indeed would contend that it is an intrinsically desirable mode of rendering criminal justice." (9) In this light, the endorsement, or at least tolerance, of plea bargaining within the Canadian criminal justice system reads less as full-throated approval, and more as widespread acceptance of the inevitable.

Indeed, while practitioners and scholars are generally critical of plea bargaining, most accept it as a virtually ineradicable feature of the criminal justice system. (10) Many critics therefore focus their attention not on abolition efforts, but on developing reform proposals that could improve plea bargaining's fairness and reliability. (11) I count myself among this group. Whatever its deficiencies--and I agree with the critics that there are many--plea bargaining serves converging economic, personal, political, and institutional interests that make its eradication highly unlikely. I therefore follow the courts and the majority of commentators in accepting plea bargaining as a stable and central institution within our criminal justice system.

The claim that plea bargaining will occur does not, however, tell us how it ought to occur. Even plea bargaining's most vociferous critics can hardly dispute that individual plea bargaining practices can be better or worse. And even those who campaign for plea bargaining's abolition would presumably agree that--to the extent it persists--better plea bargaining practices are preferable. Given plea bargaining's supremacy and tenacity, the most immediate normative question is consequently how to make it as just as it can possibly be. This article takes up that question, focusing in particular on the role of the Crown prosecutor (Crowns). I ask how Crowns should identify the charges and sentences they will seek through plea bargaining, and I query which negotiation strategies they should embrace or eschew in order to promote substantive and procedural justice through plea bargaining.

Many plea bargaining reformers and commentators have already considered the role of the Crown prosecutor during plea bargaining. Among them, many specifically focus on the effects of prosecutorial discretion. (12) As I explain below, Crown prosecutors have tremendous discretionary authority that they can mobilize in order to put extraordinary pressure on defendants to accept plea bargains. As such, restrictions on prosecutorial discretion are often seen as a promising means of improving plea bargaining's fairness. In practice, however, calls to limit prosecutorial discretion have consistently been ignored--perhaps because, like plea bargaining itself, expansive prosecutorial discretion serves a host of institutional interests that conspire to shield it from meaningful reform. (13) Given the tenacity of broad prosecutorial discretion, it is surprising that relatively few scholars have considered how to encourage Crowns to use their discretion in a manner that promotes fairer plea bargains rather than simply considering how to curtail that discretion. My central aim in this article is to help address this gap in the literature by investigating how Crown prosecutors can use their discretion ethically and purposively in order to make plea bargaining more just.

An obvious starting point for any analysis of how Crown prosecutors ought to behave is prosecutorial ethics: the body of jurisprudence that details norms for prosecutors' behaviour. The central tenet of prosecutorial ethics is that Crowns have a duty to seek justice, or to act as ministers of justice. (14) This duty is central to their institutional role. Indeed, expansive prosecutorial discretion is largely justified on the grounds that it empowers Crowns to fulfill their mandate to seek justice. Crown prosecutors are better able to pursue just outcomes, it is argued, to the extent that they are empowered to make discrete, context-sensitive judgments in individual cases. The problem, of course, is that the discretionary authority that allows Crowns to make good judgments also enables them to make bad ones. In other words, discretion can enable wise, empathetic, and humane decisions, but it can also provide cover for rash, cruel, or biased decisions. In the pages that follow, I explore this tension by considering how Crown prosecutors ought to use their discretion for the purposes of plea bargaining.

I begin in Part I by sketching out the background: I consider why prosecutorial discretion is both troubling and promising, and I explain its role in plea bargaining. I also consider the chief rationales for maintaining expansive prosecutorial discretion, including the notion that it enables Crowns to fulfill their overarching ethical mandate to seek justice, or to act as ministers of justice. I note that, while this mandate provides important guidance to Crowns and has been helpfully elaborated in various ways, it remains open-textured: inasmuch as reasonable people disagree about what justice requires, two reasonable, ethically...