A Tilted Playing Field? The Release-Dismissal Asymmetry and Interplay Plea Bargaining

Abstract

Though Judge Learned Hand famously wrote in 1923 that “[u]nder our criminal procedure the accused has every advantage,” more recent scholarship has persuasively argued that the playing field in a criminal prosecution is tilted against, rather than for, the defendant. In federal criminal prosecutions where there is, beyond the immediate criminal liability risk, a future threat of the government also bringing civil claims against the same defendant, the defendant faces increased uncertainty and vulnerability. This vulnerability is made worse by an asymmetry in options available to the parties in a criminal prosecution, an asymmetry that has been hesitantly but repeatedly ratified in the case law and by prosecutors themselves. In particular, while the defendant can and may be compelled to give up any of his future meritorious civil claims arising out of the prosecution and thus assure the government the finality it might seek, federal prosecutors often cannot assure the defendant that the government will not pursue future civil claims against the defendant. This limit on the prosecutor’s power to bind the government from bringing future civil charges against the defendant, and its effect on the plea process in criminal cases, are both illustrated vividly in the tax interplay and immigration interplay contexts. The ultimate effect of this power imbalance within the contractual model of plea bargaining is to increase the defendant’s vulnerability during the plea process, to strengthen the government’s already substantial leverage, and to create a harsh trap for the unwary and unsophisticated defendant who erroneously thinks he has bargained for finality.