"Clientless" Prosecutors

Class counsel and prosecutors have a lot more incommon than scholars realize. Because these lawyershave to make decisions on their client's behalf that clientswould make in other contexts, they prompt substantialconcerns about lawyers' accountability to their clients.Accordingly, there is a lot that each context can learn fromthe other about how to hold these lawyers accountable.This Article considers what criminal law can learn fromclass action law. Its central insights are first that diffuseentities comprised largely of apathetic individuals cannotbe expected to hold their lawyers accountable. And second,to combat that accountability deficit, just as judges playan important role in holding class counsel accountable, sotoo should judges play an important role holdingprosecutors accountable-both to their public-clients andtheir constitutional obligations.In more concrete terms, this Article contends that once aplea agreement has been reached, courts shouldsubstantively review the sentence that the partiesrecommend with an eye to the process that yielded theagreement, much as courts review class action settlements.As with class members in class actions, courts shouldafford opportunities to be heard to those who wish tocontest the deal to inform the court's review.

If courts arehamstrung at sentencing by prosecutors' chargingdecisions that they think inappropriate, judges shouldarticulate their concerns and ask prosecutors to justifythose decisions on the record in open court to facilitateaccountability by the electorate and within prosecutoroffices.