Josh Bowers


In this Symposium Article, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalisticmanner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so. In this way, the Court’s coercion baseline is legalistic—it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus away from code law. In a series of right-to-counsel cases, it has redefined prevailing plea bargaining practice as the benchmark. This amounts to an emerging extralegalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it. Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so. My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline—a proportionality baseline. I defend this alternative extralegalistic baseline and even prescribe a practical methodology for its discovery. And, notably, my preferred approach is not without precedent. The Court has applied analogous extralegalistic baselines to claims of coercion in other constitutional contexts.