Bargaining About Future Jeopardy

Daniel C. Richman, Columbia Law School


The debate about how much protection criminal defendants should have against successive prosecutions has generally been conducted in the context of how to interpret the Double Jeopardy Clause. But for the huge majority of defendants -- those who plead guilty instead of standing trial -- that clause simply sets a default rule, establishing a minimum level of protection where they choose not to bargain about the possibility of future charges. Most defendants not guaranteed repose by double jeopardy doctrine find sufficient reassurance in "off the rack" agreements covering the "scope of the indictment" and in prosecutors' institutional constraints. For those defendants not satisfied with these protections, however, minimalist double jeopardy doctrine presents a dilemma, since an agreement explicitly protecting against unbrought charges can be negotiated only at the risk of exposing crimes or culpability of which the government was not aware. Drawing on recent contract literature, this article shows how this strategic obstacle will frequently lead to "gaps" in specially negotiated plea agreements. The article then critiques the rules devised by courts to fill these gaps; inquires into the extent of the government's obligations when it contracts with defendants, and proposes a set of default rules that better reflect the realities of the bargaining process.