Habeas Bargaining

Settlement is the norm is criminal trials. Over 90 percent of criminal defendants plead guilty. A large portion do so as part of a plea bargain, i.e., a settlement, with prosecutors. In exchange for foregoing a criminal trial, prosecutors offer defendants a lower sentence. Settlement, however, is not the norm in habeas proceedings. Although every prisoner was once a defendant, prisoners very rarely settle with government attorneys after filing a habeas petition. This paper explores why there is a difference in norms in criminal and habeas cases and argues that parties to habeas litigation should be encouraged to resolve their claims out of court. Settlements offer prisoners with serious habeas claims quicker and more certain reductions in their prison sentences. The paper estimates that a norm of settlement would reduce habeas caseloads by nearly one-third. In order to promote settlement of habeas cases, this paper proposes, among other things, modifying Federal Rule 35 of Criminal Procedure to permit courts to amend sentences upon a habeas settlement, regardless of whether the modified sentence is within the guideline range for the prisoner's offense. In order to ensure that habeas settlements, like plea bargains, are safe for prisoners and constitutionally sound, Rule 35 also should be revised to require that courts conduct Rule 11-type colloquies with prisoners before accepting habeas settlements. Moreover, courts should not permit prisoners to waive their right to challenge habeas settlements on the grounds of ineffective assistance of counsel.