Priceless Process: NonNegotiable Features of Criminal Litigation

Abstract

In this Article, Professor Nancy King develops an approach for determining when judges should block the efforts of criminal litigants to bypass constitutional and statutory requirements other than those already traded freely in traditional plea bargains. Devices for classifying nonnegotiable requirements, including the concept of "jurisdictional error," have lost their utility. Clearer rules about which deals are enforceable and which are not would increase certainty in bargaining and reduce disparate treatment of similarly situated defendants. King argues that the interests of third parties or the public may justify restrictions on bargains in criminal procedure, and she traces the stubborn persistence of barriers to free trade in rights and process in this age of plea bargaining. To judge whether or not interference is warranted today, two inquiries must be made. First, a court must identify what public or third-party interests are threatened by a litigant's bargain. Second, a court should assess whether the protection of those interests requires the relief proposed, or whether, instead, alternative remedies are available to adequately protect the interests threatened by enforcement of the parties' agreement. King applies this approach to a number of controversial bargains, including agreements in which a defendant waives structural protections of the Constitution, the right to the effective assistance of counsel, factual accuracy and legislative limits on sentencing, the right to a speedy trial, and the protections of the Eighth Amendment.