Beyond Plea Bargaining: A Theory of Criminal Settlement

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal settlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk mitigation, and value maximization. Focusing only on a defendant’s promise to plead guilty discounts the diversity and complexity of the agreements into which defendants and prosecutors may and regularly do enter. This Article advances a comprehensive framework of criminal settlement—one that leverages incomplete or partial settlements as an analytical frame that stretches beyond mere plea bargaining. As in the civil context, criminal settlements need not resolve disputes outright but may instead limit or redefine a dispute in a way that the parties find mutually beneficial. A crucial difference in the criminal context, however, is that these bargains necessarily take place in the shadow of judicial discretion that regulates access to the state’s power to punish. Consequently, prosecutors and defendants may agree to reshape procedures, issues, and potential outcomes in order to constrain or influence judicial decision- making in ways that are congruent with their respective interests. But judges are not passive in this landscape. They, too, may act strategically to prompt the bargains we ultimately observe. By modeling this interplay between parties and judges, this Article fashions a more complete picture of the motivations, consequences, and policy implications of criminal settlement