NCJ Number
79595
Journal
Houston Law Review Volume: 17 Dated: (May 1980) Pages: 753-774
Date Published
1980
Length
22 pages
Annotation
The conventional use of contract theory as applied to plea bargaining is reviewed, and the U.S. Supreme Court's language in Santobello v. New York is considered.
Abstract
For years, the courts have used contract law to resolve disputes arising from the offer and acceptance stage of plea bargaining. The theme behind the ordinary case of a breached plea bargain has been that the defendant should be provided some remedy when the prosecutor reneges on a unilateral offer after the defendant has performed in reliance upon the promise. The Supreme Court in Santobello gave constitutional support to this theme, although the Court left for speculation the specific foundation for its holding. In Cooper v. United States, the fourth circuit determined that the constitutional foundation supporting the plea bargaining process included more than guarantees of a voluntary and intelligent plea and more than a constitutionally based contract law for plea bargaining. The court used the sixth amendment right to effective assistance of counsel and notions of due process extending beyond any application in Santobello to enforce a prosecutor's plea proposal that had not been accepted by the defendant prior to the prosecutor's revocation. The response of prosecutors to the court's promptings is currently a matter of speculation. If the Cooper decision demands substantial reform of the plea bargaining process, however, the active participation of the judiciary is a likely means of ensuring desired change. Given the view that plea bargaining is an essential and highly desirable process, its prevalent use requires judicial protection of defendants' rights to fair treatment in the criminal process. A total of 156 footnotes are provided. (Author summary modified)