Darryl Brown

The Judicial Role in Criminal Charging and Plea Bargaining

Hofstra Law Review

UVA Law Faculty Affiliations


This Article’s primary goal is to provide a compact synthesis of the law that authorizes, defines, and regulates judicial authority regarding decisions whether to file criminal charges, which charges to file, and how charges might be adjusted in the plea bargaining process. Part II focuses on judicial power with respect to initial charging and noncharging decisions. Whether judges have a role with respect to criminal charging depends on which aspect of charging one is concerned about— or put differently, what problem or risk in prosecutorial decisions judges could be called upon to address. Where it is granted by statute, judges have clear authority to assure that prosecutions do not proceed if charges are not grounded on a minimally sufficient factual basis. Judges in approximately one-third of state justice systems have the additional power to dismiss factually well-grounded charges if they conclude doing so is “in the interest of justice.” By contrast, judges have no power in many state or federal courts to address prosecutors’ decisions not to charge a suspect with a specific offense, although there are notable exceptions—a few states do grant judges some power in this context. This power is closely tied to rules about whether judges have the power to initiate criminal charges independently of prosecutors. In some states, under the right circumstances, they do. Additionally, judges have clear, albeit functionally very weak, authority to address the problem of biased prosecutions, that is, charges filed by prosecutors for improper reasons. Part III considers judicial power over charging in the plea negotiation context, that is, once charges have been filed. Judicial power can be significant with respect to assuring that particular charges lead to a just outcome that is appropriate on the facts of the case, although judicial authority varies here depending on the nature of the problems judges might seek to address. Judges certainly can reject proposed plea bargains if they conclude the disposition is either too lenient or too harsh. Their power to fashion a just outcome can be constrained, however, by sentencing laws and by limits on their ability to compel more severe charges or accept guilty pleas to lesser ones. The power of some state judges to dismiss charges sua sponte in the interest of justice extends to this stage as well. From this survey of existing law and practice, two basic themes emerge. The first belies much of the standard story about the judicial powerlessness over criminal charging, at least in some states, as a matter of constitutional law. The second identifies the sources of law that make that standard story a largely accurate one in the many jurisdictions. Where that is so, it is due predominantly to judges’ own reluctance about—or aversion to— exercising greater authority over charging, and in some places, to legislative policy constraining that authority, rather than to any limitations from constitutional law or from the common law and adversarial process traditions.


Darryl K. Brown, The Judicial Role in Criminal Charging and Plea Bargaining, 46 Hofstra Law Review 63-85 (2017).

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