110 Iowa L. Rev. Online 67 (2024)
Abstract
Under what circumstances is it appropriate for a prosecutor to offer a fictional plea bargain? This is the question that Ben A. McJunkin and J.J. Prescott ask in their thought-provoking article, Collusive Prosecution. In this response, I argue that although McJunkin and Prescott make a compelling argument that fictional pleas are an acceptable exercise of prosecutorial discretion in cases where a defendant is facing immigration consequences, their arguments about the ethics of such pleas for those facing sex offender registration are less persuasive. The root of my disagreement with McJunkin and Prescott is about why prosecutors make fictional plea offers in sex crimes cases. McJunkin and Prescott propose that prosecutors will “collude” with defendants for the purpose of pushing sex offenders from the offending jurisdiction into other states. Under this theory of “why,” McJunkin and Prescott find that prosecutors should not, under a fiduciary theory of prosecution, offer such pleas. But, as this response argues, there are more likely reasons that prosecutors agree to fictional pleas in sex crimes cases, namely to achieve some vision of justice for the parties or merely to get to a speedy resolution on the case. If these more prosaic reasons provide an explanation for this deal-making, then such pleas may be an appropriate use of discretion under the fiduciary theory.