In Print: Volume 85: Number 4
By Michael T. Cahill
85 Wash. U. L. Rev. 815 (2007)
In 2003, Attorney General John Ashcroft announced a set of Department of Justice (DOJ) policies designed to curtail federal prosecutors’ discretion to plea bargain. The new DOJ rules sought to ensure uniform criminal punishments and prevent criminal offenders from cutting deals to avoid deserved punishment. Yet the would-be ban on bargaining seems to have had little, if any, effect. Such a result is hardly surprising, as the policy’s spirit of pursuing justice at all costs, however noble, is unworkable if the pursuers cannot actually pay all costs. Limitations of budget, resources, or evidence inevitably demand some compromises, such as a tradeoff between seeking the maximum punishment for each offender and ensuring some punishment for all offenders. Because Ashcroft’s memorandum could not articulate clear rules for how or when prosecutors could take these practical constraints into account, the result was more business as usual: unguided and unreviewable exercises of prosecutorial discretion in individual cases.
Both the adoption and the failure of the DOJ antibargaining policy underscore a significant but often-ignored difference between the two major theories of criminal law, utilitarianism and retributivism. The policy reflected the aspirations of a retributive-justice agenda, seeking fair, uniform, and deserved punishment for all offenders. Yet the policy also reflected the limitations of such an agenda, highlighting its restricted scope relative to that of the rival utilitarian theory. In a meaningful way, utilitarianism provides a complete theory of criminal justice, while retributivism apparently does not.