The standard answer to the question of what role judges have in determining the appropriateness of criminal charges is “virtually none.” On the one hand, it is “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” On the other, at least with respect to the fairness of charges that are the basis of prosecutions, the scope of judicial authority is quite limited, because prosecutorial charging discretion is “almost limitless” and “[g]overnmental investigation and prosecution of crimes is a quintessentially executive function.” Most state justice systems follow the federal constitutional model, under which “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” It could hardly be otherwise, the U.S. Supreme Court has suggested, because decisions to prosecute are “ill-suited to judicial review.” With only modest qualifications, much the same is said about the judicial role in plea bargaining. Plea agreements are closely bound up with charging decisions—they often involve dismissing some charges or substituting one charge for another, and partly for that reason the judges’ role often remains largely “passive.” The parties negotiate terms for a criminal judgment that they then present to the judge, whose role is confined to confirming a factual basis for the plea, the knowing voluntariness of the defendant’s plea, and (depending on the sentencing law and the terms of the parties’ agreement) exercising some discretion in dictating the sentence.
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