Bargaining About Future Jeopardy

The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. The doctrinal focus of this debate ignores the fact that for the huge majority of defendants – those who plead guilty instead of standing trial – the Double Jeopardy Clause simply sets a default rule, establishing a minimum level of protection when defendants choose not to bargain about the possibility of future charges. In this Article, Professor Richman examines the world that exists in the shadow of minimalist double jeopardy doctrine, exploring the dynamics of such bargaining and the rules that govern it. Professor Richman begins by showing why, for most defendants, the limited scope of fifth amendment protection against successive prosecution makes little difference. If a guilty plea does not give jeopardy protection against all charges that could possibly be brought, such protection will be afforded by a standard agreement covering the scope of the indictment. And prosecutors\u27 institutional constraints will generally offer assurances far beyond those terms. For those defendants not satisfied with these protections, however, minimalist double jeopardy doctrine presents a dilemma, since a plea agreement that explicitly protects against unbrought charges can be negotiated only at the risk of exposing crimes or culpability of which the government was not aware. Drawing on recent contract literature, Professor Richman shows how this strategic obstacle will frequently lead to the creation of \u27gaps in the protection offered by specially negotiated plea agreements. The Article then turns to the rules devised by courts to fill these contractual gaps, rules generally based on due process analyses of defendants\u27 expectations or prosecutors\u27 good faith obligations. After critiquing these rules, Professor Richmnan inquires into the extent of the government\u27s obligations when it contracts with defendants and proposes a set of default rules that better reflect the realities of the bargaining process