​Testing Periods and Outcome Determination in Criminal Cases

Abstract

The operation of the criminal justice system has shifted dramatically without the change drawing widespread attention. To a significant extent, decisions about whether an accused will go to prison no longer depend on an adjudication of the facts underlying the criminal charge. Instead, such decisions rest on a defendant's ability to follow the rules of a future-oriented testing period created and overseen by the presiding court.

In this modern testing system, judges and prosecutors prescribe the prospective rules that defendants must follow in order to avoid prison. Typical rules include: do not use drugs or alcohol, do not get rearrested, stay away from a specific person, do not associate with criminals, follow the requirements of your treatment program, and get yourself to appointments on time. The procedural opportunity created by the test is framed as a promise: Defendants are promised that they will remain at liberty if they can follow the rules during the allotted period. The incentive posed by this promise often proves irresistible, even when the price of participating is high.

This method of testing defendants, while sidestepping trials, is deeply compatible with plea bargaining; the tests increase the range of options defendants can consider as alternatives to invoking their jury trial rights. At the same time, the tests ratchet up the authority available to prosecutors and judges in what the U.S. Supreme Court has termed our ""system of pleas."'