Prosecutorial Responsibility and Collateral Consequences

Plea-bargaining has been the norm in criminal adjudication for over a century. Prosecutors, once the architects of trials, now design the negotiation process with a particular eye towards sentencing. Such sentences visibly include direct consequences, but perhaps more significantly, collateral consequences that result automatically from conviction and that hamper reentry by ex-offenders. These penalties, often invisible at the time of plea negotiations, are punishment-like in effect and have penalogical justifications that resemble traditional methods of punishment. While the Supreme Court has required disclosure and notice of consequences by defense counsel in recent years, the time is right to contemplate imposing disclosure obligations on prosecutors as well. The values underlying prosecutorial disclosure of exculpatory evidence translate to the plea bargaining context with respect to information regarding sentencing. Those values, the Court’s recent jurisprudence of “notice,” and the need to heighten systemic literacy regarding collateral consequences, support imposing a requirement that prosecutors disclose serious, automatic collateral consequences because prosecutors enforce those consequences when they construct plea deals. While some commentators have called for shared participation by prosecutors in alleviating such consequences, none have conducted a searching analysis regarding a possible formal, legal basis. This Article begins that task by surveying current constitutional doctrine regarding disclosure and notice, as well as existing standards of professional responsibility for prosecutors involved in plea deals. It concludes that, while fertile ground for a constitutional obligation exists through fusion of the Court’s plea-bargaining jurisprudence with justifications for prosecutorial disclosure of exculpatory evidence, it may be more prudent to impose obligations as a matter of professional responsibility, building on the unique role of the prosecutor as a minister of justice within the plea-bargaining norm.