Dickering Your Way to Democracy: Reforming the Unilateral Semi-private Public Ordering Regime of Plea Bargaining

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David Wovrosh, Blog Editor, University of Cincinnati Law Review

Courts are notoriously wary to wade into matters of pretrial plea deals.[1] Breaking with this historical hesitancy, two sister cases, Lafler v. Cooper[2] and Missouri v. Frye[3], marked a departure from the Supreme Court’s silence on plea bargaining by extending Sixth Amendment effective assistance of counsel protections to cover plea deals. The judicial ramifications of these decisions remains to be seen but that has not stopped an avalanche of commentary.[4]

The reality is that plea bargaining is a largely extrajudicial affair in which prosecutors operate with little to no judicial oversight.[5] This article argues the plea-bargaining system is truly a regime of unilateral semi-private ordering[6] that undermines the democratic ideals the traditional Anglo-American adversarial system is designed to uphold. The Court’s extension of constitutional protections to the largely unregulated plea-bargaining system is a step in the right direction, however reform is still needed.

The Plea Function and Supreme Court Precedent

One of the persistent ideals in American jurisprudence is the Anglo-American adversarial trial process in which two opposing sides engage the court to adjudicate disputes.[7] This stands in opposition to the European model, which employs an “inquisitorial” approach that largely dispenses with the adversarial nature of the trial.[8] Most American legal observers pay lip service to how the Anglo-American model is “more protective of liberty, more democratic, and less dominated by agents of the government” than an inquisitorial model.[9] American courts begin with the presumption that trials move through the Anglo-American adversarial process. This presumption, however, is misplaced and fails to recognize the extent to which the Anglo-American adversarial system is no longer the primary way cases are adjudicated.

Rather, a vast majority of criminal cases are processed not through adversarial trial, but through the plea bargaining system.[10] In fact, “Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”[11] This reality is all but ignored, given that the “Supreme Court has usually treated plea bargaining as an afterthought, doing little to regulate it.”[12] More recently, however, the Court has come to realize the outsized role that plea bargaining plays in the administration of justice. Three Supreme Court decisions have laid the groundwork for the Court’s extension of constitutional protections to the pleading stage.

In Padilla v. Kentucky,[13] the Supreme Court noted the importance of constitutional safeguards during the plea bargaining stage.[14] The Court announced that the Sixth Amendment requires defendant noncitizens be provided with accurate information about the possibility of deportation before accepting a plea deal.[15] In this regard, the right to counsel required an affirmative step in the pleading stages to ensure that defendants were fully informed of the implications of their decision.[16] In two sister cases, Lafler v. Cooper[17] and Missouri v. Frye,[18] the Supreme Court further extended the notion that plea bargaining should be afforded the full weight of the Sixth Amendment.

In Missouri v. Frye, a criminal defense attorney failed to relay a plea deal to the defendant before the deal expired.[19] This resulted in the defendant pleading guilty to a felony charge instead of what originally was a misdemeanor offer.[20] Over the state’s contention that the defendant had no right to a plea offer and therefore lacked Sixth Amendment guarantees,[21] the Court held this line of argumentation overlooked the reality that trials have largely been replaced by the plea bargaining process.[22] By holding that ineffective assistance of counsel applies through the plea negotiation process, the Court observed “it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.”[23]

In Lafler v. Cooper, the defendant’s attorney absurdly recommended the defendant decline the plea deal because the defendant “could not be convicted for assault with intent to murder as a matter of law because the shots hit [the victim] below the waist.”[24] By taking this advice, the defendant was convicted and sentenced to a term over three times as long as the original plea deal.[25] The Court found this gross incompetency during plea stages amounted to a violation of the defendant’s Sixth Amendment right to effective counsel as “the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.”[26] Both Lafler and Frye represent the Court’s blossoming recognition that “criminal justice today is for the most part a system of pleas, not a system of trials.”[27] However, the Court fails to understand the “system of pleas” is more akin to a unilateral system of administrative law than a bargaining table of equals.

Pleading as Unilateral Semi-Private Ordering

Private ordering occurs where the government shares its regulatory and rulemaking function with a private actor or institution, such that the private actors create and enforce the law.[28] One way that private ordering occurs is when a system of rules is “put into force by private actors pursuant to governmental delegation.”[29] In this model, the actors to whom the power is delegated have “substantive powers” that are able to bind the parties to the transaction.[30]

The traditional adversarial system justice no longer comports with the process that was designed to facilitate the impartial administration of justice.[31] The Anglo-American adversarial criminal process has given way to an administrative regime in which “administrative justice has replaced adversarial and the prosecutor now occupies the primary role in adjudicating guilt and setting punishments.”[32] This can be seen as a complete delegation of the judicial process to be hashed out between the accused citizens and the executive branch.[33]

Given the Supreme Court’s relative indifference to plea bargaining, there are few formal or procedural rules that govern the pleading process.[34] Courts are strictly barred from any sort of participation in the plea bargaining process.[35] Indeed, “plea bargaining remain[s] all but unregulated, a free market that sometimes resemble[s] a Turkish bazaar.”[36] This circumnavigation of the trial system can be described as a form of “semi-privatized public justice.”[37]

In the absence of formal rule structures governing the interactions of repeat players,[38] prevalent economic theory posits that parties will organically form norms and rules.[39] This “customary law” stands in contrast to centralized rule structures imposed by legislatures in that customary law is formed from the “bottom up.”[40] Thus, in an area of delegated justice with minimal judicial oversight, those charged with carrying out the delegated function will, over time and through repeated interactions, come to form an inherently self-regulated structure of rules and norms. That structure, however, is directly influenced by the amount of power that those repeat players bring to the table.[41]

Despite the plea bargaining process being one that is typically described as a bargaining table,[42] this assumption is simplistic at best and fundamentally flawed at worst. It is axiomatic to say public defenders are overworked, understaffed, and suffering from a critical paucity of funding and resources.[43] The prosecutorial function, generally, enjoys a 3:1 funding ratio over indigent defense funding.[44] In some jurisdictions, this ratio is as high as 14:1.[45] The result is an environment where public defenders, who represent the majority of all criminal defendants,[46] have adopted a system of triaging clients, known colloquially as a “meet ‘em and plead ‘em” system.[47] In this regard, the prosecutors wield an enormous amount of power at the bargaining table.[48]

Despite being characterized as a negotiation,[49] plea bargaining is less a bargain representing truly dickered terms and more closely to resembles a contract of adhesion.[50] Given that norms regulating plea bargaining are established between private individuals (through counsel) and public prosecution, the rules and norms of the plea function are semi-privately generated.[51] To the extent that individual citizens and prosecutors engage in the semi-private ordering of justice, this is one of unilateral ordering. It is anomalous, therefore, that the administrative system of justice, protected by the Sixth Amendment, systematically mutes the ability of defendants to assert the kind of democratic pressure on the judiciary that the Anglo-American adversarial system is praised for.[52]

Restoring the Balance

As easy as it is to criticize the plea system, it would be reckless to propose discarding it in its entirety. It cannot be ignored that the system is an outgrowth of an inefficient and bloated docket.[53] The administrative nature of a unilateral semi-private ordering regime is largely an organic product stemming from the failure of the Anglo-American adversarial system to respond to a ballooning criminal docket.[54] By adjudicating claims in an administrative regime, parties save valuable time and costs in an efficient self-regulated system.[55] Because the plea bargaining system has ossified into a necessary institution,[56] tearing it up would amount to displacing the entire judicial system.

It is equally important, however, to not rest on the Lafler and Frye decisions as a panacea to the substantive issues facing defendants during plea bargaining. It is far too easy for this sentiment to become one “that reduces the impulse to form effective oppositional politics by making people feel better about navigating particular manifestations of recalcitrant power disparities.”[57] The current form of unilateral semi-private ordering can result in overcharging the defendant and causing otherwise innocent people to plead guilty.[58] To inject the “checks and balances” that the traditional Anglo-American adversarial process embodies,[59] two critical elements must be restored to the plea process: the establishment of agency between defendant and counsel, and the affirmative duty of transparent and intelligent pleading.[60]

There should be one guiding principle that undergirds the Lafler and Frye decisions: restoring the full protections of the Sixth Amendment to the accused during the critical stage of plea bargaining. It is critical to tether the rights of the Sixth Amendment not just to counsel, but to the accused. As Professor Pamela R. Metzger argued, the Supreme Court has severed the agency relationship between the attorney and the accused.[61] The Court has “consistently refused to endorse such a defendant-autonomy model of Gideon representation–a model in which lawyers educate and advise clients but clients ultimately control the defense.”[62] To inject a more democratic balance to the pleading system, the system should be calibrated so the defendant has the right to a more controlling decision-making authority with their counsel.[63] In this sense, the accused can have the opportunity to assert their own preference into the pleading system and eliminate the kind of “meet ‘em and plead ‘em” triaging that occurs.

It is not enough, however, for the defendant to be in the driver seat. That ability, without being fully informed, is meaningless. Instead, defendants should have an affirmative right to information so as to be informed of not just their charges, but also of what kind of sentencing they may receive at trial. After all, in the wake of Padilla, the Court “squarely recognized that, to make bargaining just, defendants need information to evaluate bargained-for sentences.”[64] To comply with Padilla’s establishment of an affirmative right to the implications of pleadings, courts, professional organizations, and public defense institutions banded together to produce training, literature, and other procedural safeguards to ensure that defendants knew the immigration consequences of a guilty plea and how those would be triggered.[65]

The Supreme Court should require similar affirmative disclosures to defendants during the pleading stages of criminal cases. Such information would require plain-English descriptions of the potential charges at trial and what the plea offer is.[66] By requiring affirmative steps are taken to ensure that the defendant fully comprehends the offer and alternatives, defendants could then make a calculated and intelligent decision about whether to accept a plea or to truly negotiate a different deal.[67] By establishing affirmative responsibilities to advise defendant-driven plea bargaining, the unilateral system of semi-private-ordering can be restored to one of bilateral ordering which allows defendants to engage in systemic reform.[68] After all, “Plea bargaining’s semi-privatized justice is best suited to semi-privatized remedies and reforms.”[69]


The prosecutorial function of the courts wields an inordinate amount of influence over those that it brings into its ambit. With outsized resources and discretion, prosecutors incentivize defendants to come to the bargaining table. The vast majority of those coming into contact with the carceral state are represented by public defenders—often overworked and under-resourced such that a “meet ‘em and plead ‘em” environment is prevalent.[70] In carrying out the prosecutorial function, plea deals are often unilateral in nature and allow defendants little ability to assert truly dickered terms that can act as a meaningful mechanism to democratize the sentencing process for those who are most likely to come into contact with it. The systemic failure to allow those who stand to lose the most to participate in the plea process falls short of the Supreme Court’s mandate for effective assistance of counsel undergirding the Lafler and Frye decisions. In order to allow defendants an ability to participate in the administrative adjudication of the law, the accused should have an affirmative right to informed pleas as well as agency within their representation. Only then can the extrajudicial administrative system of pleas come to espouse the values that we attribute to our adversarial system.

[1] Darryl K. Brown, Judicial Power to Regulate Plea Bargaining, 57 Wm. & Mary L. Rev. 1225, 1235-36 (2016).

[2] 566 U.S. 156 (2012).

[3] 566 U.S. 134 (2012).

[4] See, e.g., Adam Liptak, Justices’ Ruling Expands Rights of Accused in Plea Bargains, NY Times (Mar. 21, 2012), https://www.nytimes.com/2012/03/22/us/supreme-court-says-defendants-have-right-to-good-lawyers.html?_r=0 (arguing that the decision would be on par with landmark cases such as Gideon); Albert W. Alschuler, Lafler and Frye: Two Small Band-Aids for a Festering Wound, 51 Duq L. Rev. 673 (2013) (arguing that the decisions are largely cosmetic and will have little real-world implications).

[5] Frye, 566 U.S. at 143.

[6] Though the definitions may vary, semi-private ordering can be understood as “a cooperative endeavor between a public body and private interests that is designed to create a body of rules enforced by some mechanism other than direct promulgation by the public body.” A. Michael Froomkin, Semi-Private International Rulemaking: Lessons Learned from the WIPO Domain Name Process, in Regulating the Global Information Society 211, 212 (Christopher Marsden, ed., 2000).

[7] Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117, 2118-20 (1998).

[8] Id.

[9] Id. at 2117.

[10] Cynthia Alkon, The U.S. Supreme Court’s Failure to Fix Plea Bargaining: The Impact of Lafler and Frye, 41 Hastings Const. L.Q. 561, 562 (2014).

[11] Lafler v. Cooper, 566 U.S. 156, 170 (2012).

[12] Stephanos Bibas, Incompetent Plea Bargaining and Extrajudicial Reforms, 126 Harv. L. Rev. 150 (2012).

[13] 559 U.S. 356 (2010).

[14] Id. at 373.

[15] Id.

[16] Id. at 370-71.

[17] 566 U.S. 156 (2012).

[18] 566 U.S. 134 (2012).

[19] Id.at 138-39.

[20] Id. at 139.

[21] Id. at 143. The state contended that any deficiencies in the plea bargaining context could be rectified through adjudication at trial. Id.

[22] Id.

[23] Id.

[24] 566 U.S. 156, 174 (2012).

[25] Id. at 161.

[26] Id. at 170.

[27] Lafler v. Cooper, 566 U.S. 156, 170 (2012).

[28] See generally Steven L. Schwarcz, Private Ordering, 97 Nw. U.L. Rev. 319 (2002). Private ordering is most often seen in the realm of administrative law, though its application is not exclusive to administrative law.

[29] Id. at 326.

[30] Id.

[31] See William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 Suffolk U. L. Rev. 67, 80-82 (2006).

[32] Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 Ga. L. Rev. 407, 425-26 (2008).

[33] “[P]rosecution of crimes is a quintessentially executive function.” Morrison v. Olson, 487 U.S. 654, 706 (1988) (Scalia, J., dissenting).

[34] Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117, 1119 (2011).

[35] Fed. R. Crim. P. 11(c) “An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions.” (emphasis added).

[36] Id.

[37] Stephanos Bibas, Incompetent Plea Bargaining supra note 12, at 173.

[38] In the plea bargaining context, repeat players are the prosecution and defense counsel. See Bibas, Regulating the Plea-Bargain Market, supra, note 34, at 1139-1141.

[39] Bryan H. Druzin, Planting Seeds of Order: How the State Can Create, Shape, and Use Customary Law, 28 BYU J. Pub. L. 373, 394 (2014). Plea bargaining itself can be seen as a form of customary law growing organically out of the institutional constraints of Anglo-American judicial systems. See Lynch, supra note 7, at 2145.

[40] Druzin, supra note 39, at 375; Bibas, Regulating the Plea-Bargain Market, supra note 34, at 1140-41.

[41] Eyal Benvenisti, The Interplay Between Actors as a Determinant of the Evolution of Administrative Law in International Institutions, 68 L. & Contemp. Probs. 319, 319 (2005). “Authorship [of administrative law] depends on the balance of power between the different actors.” While Professor Benvenisti discussed power disparities in the context of state actors forming international administrative law, the dynamic is still illustrative of the point.

[42] See generally Rebecca Hollander-Blumoff, Getting to “Guilty”: Plea Bargaining As Negotiation, 2 Harv. Negot. L. Rev. 115 (1997).

[43] See generally Nat’l Right to Counsel Comm., The Constitution Project, Justice Denied: America’s Continuing Neglect of our Right to Counsel (2009), http://www.constitutionproject.org/pdf/139.pdf.

[44] William Lawrence, The Public Defense Crisis in America: Gideon, the War on Drugs and the Fight for Equality, 5 U. Miami Race & Soc. Just. L. Rev. 167, 177 (2015).

[45] Id. at 178.

[46] Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2181 (2013).

[47] Molly J. Walker Wilson, Defense Attorney Bias and the Rush to the Plea, 65 U. Kan. L. Rev. 271, 295-297 (2016).

[48] Alkon, supra note 10, at 565.

[49] “[C]ourts themselves consider a plea as a bargain struck by two independent parties, treat the plea agreement as a contract, and see the bargaining as a type of contractual transaction.” Rishi Batra, Lafler and Frye: A New Constitutional Standard for Negotiation, 14 Cardozo J. Conflict Resol. 309, 323 (2013).

[50] Adhesion contracts are “take it or leave it” offers which present parties with ““no alternatives other than complete adherence to the terms presented or outright rejection.” Shelley Smith, Reforming the Law of Adhesion Contracts: A Judicial Response to the Subprime Mortgage Crisis, 14 Lewis & Clark L. Rev. 1035, 1121 n.1 (2010). For further discussion of adhesion contracts and unilateral private ordering, see generally Irma S. Russell, Got Wheels? Article 2a, Standardized Rental Car Terms, Rational Inaction, and Unilateral Private Ordering, 40 Loy. L.A. L. Rev. 137 (2006).

[51] See Froomkin, supra note 6, at 211-213.

[52] Lynch, supra note 7 , at 2117.

[53] Id. at 2141-42.

[54] Id. at 2145.

[55] Id.

[56] Lafler v. Cooper, 566 U.S. 156, 170 (2012).

[57] Janet Moore, Isonomy, Austerity, and the Right to Choose Counsel, 51 Ind. L. Rev. 167, 207 (2018); see also Butler, supra note 46. Professor Butler argues that despite the right to counsel since Gideon, indigent defendants have actually fared worse since Gideon, in part because the Gideon holding “provides a legitimation of the status quo” and thus disincentivizes action. Id. at 2197.

[58] “[P]lea bargaining] presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense.” Lafler v. Cooper, 566 U.S. 156, 185 (2012) (Scalia, J. dissenting); see also Tina M. Zottoli et. al., Plea Discounts, Time Pressures, and False-Guilty Pleas in Youth and Adults Who Pleaded Guilty to Felonies in New York City, 22 Psychol. Pub. Policy & L. 250, 251 n.2 (2016).

[59] Bibas, Incompetent Plea Bargaining, supra note 12, at 171; see also Lynch, supra note 7, at 2117-2120.

[60] Importantly, the solution of requiring affirmative constraints semi-private ordering is one way which restores power imbalances in the rulemaking process. Benvenisti, supra note 41, at 325-26.

[61] Pamela R. Metzger, Fear of Adversariness: Using Gideon to Restrict Defendants’ Invocation of Adversary Procedures, 122 Yale L.J. 2550, 2564-70 (2013).

[62] Id. at 2570.

[63] It can be argued that this type of relationship is already implicit in the attorney client relationship. See Model Rules of Prof’l Conduct R. 1.2 (Am. Bar Ass’n 2018); but see Metzger, supra note 61, at 2572. “Defense lawyers know that they have unilateral control over tactical rights. And, the application of Strickland to fundamental rights alerts defense counsel that there will be no judicial condemnation if they assume unauthorized control of [plea bargaining].”

[64] Bibas, Regulating the Plea-Bargaining Market, supra note 34, at 1140.

[65] Id. at 1139-1141; Bibas, Incompetent Plea Bargaining, supra note 12, at 165-66

[66] Bibas, Regulating the Plea-Bargain Market, supra note 34, at 1154-56.

[67] Professor Stephanos Bibas equates such duties to consumer protection reforms such as the Truth in Lending Act, noting the efficacy of such reforms to protect otherwise information-poor consumers by allowing knowledgeable consumers exert market pressure. See Bibas, Regulating the Plea-Bargain Market, supra note 34, at 1153-57.

[68] See Druzin, supra note 39, at 386-388 (arguing that in an unregulated system of repeat players, establishing positive duties leads to systemic behavior modification, as opposed to imposing negative duties which have little effect).

[69] Bibas, Incompetent Plea Bargaining, supra note 12, at 152.

[70] Wilson, supra note 47, at 295-297.