Plea bargaining is not a creature of law: it is one of legal practice. Therefore, state statutes do not create the right to plea bargain, nor do they prohibit it, with one exception. In 1975, Alaska’s attorney general at the time, Avrum Gross, banned plea bargaining in Alaska. Although the ban remains officially “in the books,” charge bargaining has become fairly common in most of Alaska’s courts. Nonetheless, Alaska has not suffered the unmanageable caseloads or backlogged trials that were predicted when the ban went into effect.
If plea bargaining appears at all in state statutes, it is generally in the context of being prohibited or restricted for certain matters or types of cases. For example, many states have prohibited plea bargaining in drunk driving cases, sex offender cases, or those involving other crimes that place the public at risk for repeat offenses or general harm. Another common provision, found in a majority of states, is a requirement that a prosecutor must inform a victim or the victim’s survivors of any plea bargaining in a case. In many states, victims’ views and comments regarding both plea bargaining and sentencing are factored into the ultimate decisions or determinations.
At least one state (Alabama) has expressly ruled that once a plea bargain is accepted, or there is detrimental reliance upon the agreement before the plea is entered, it becomes binding and enforceable under constitutional law (substantive due process). Ex Parte Hon. Orson Johnson, (Alabama, 1995).