Clark Neily of the Cato Institute is out with a scorcher, appropriately. He discusses the problems of overcriminalization, “coercive plea bargaining,” and little “accountability for police and prosecutors.”
My idea for reforming plea bargaining is simply to say that prosecutors may not threaten anyone with a sentence of more than, say, 1.5 or 2 times what they’d otherwise get via a jury trial. I’m not sure, thought.
Update: Neily recommends, “Other reforms Congress should consider in the longer term include a statutory cap on the notorious ‘trial penalty,’ which is the often substantial differential between the sentence offered in a plea bargain and the much harsher sentence the defendant will receive if he exercises his right to trial; imposing a legal duty on prosecutors to provide materially favorable evidence to the defense before any plea discussions occur, something that is not always done currently; and the elimination of absolute prosecutorial immunity, a judicially invented legal doctrine that makes it impossible for victims of even the most blatant misconduct to sue prosecutors for anything they do in the course of their prosecutorial duties.” Neily also suggests that juries be fully informed, including about the criminal penalties at play.
Some years ago the “libertarian moment” came and fizzled. Now, it seems to me, the “libertarian moment” has arrived, at least in terms of a major line of thinking of the better libertarians, with criminal justice reform.