Restoring Citizen Participation in Criminal Justice: Plea Assessment Panels and the Constitutional Crisis of Mass Plea Bargaining

Abstract

The modern plea-driven criminal justice system suffers from a deep constitutional legitimacy crisis rooted in pervasive coercion and the near-total displacement of citizen participation. While courts have long accepted mass plea bargaining, they have failed to grapple with the coercive dynamics produced by inflated trial penalties, asymmetric bargaining power, and subjective pressures that render meaningful judicial review impossible. To address these structural defects, this article proposes “plea assessment panels”—small citizen bodies that evaluate proposed plea offers for potential coerciveness and impose a punishment ceiling when prosecutorial threats cross the line. By realigning incentives, generating community-grounded norms, and restoring a measure of democratic oversight to plea negotiations, these panels would mitigate extreme coercion, create a functional common law of plea bargaining, and revive the Framers’ vision of active citizen participation in criminal justice within a system now dominated by negotiated guilty pleas.