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A Wake-Up Call from the Plea-Bargaining Trenches
Published online by Cambridge University Press: 27 December 2018
Extract
In an era of rising crime and youth violence, skyrocketing homicide rates in the inner cities, strapped municipal budgets and overwhelmed courts, what could be more untimely than a call to reduce plea bargaining and devote more resources to holding jury trials? Yet the issue of bargain justice, like the proverbial bad penny, stubbornly refuses to go away. The concern persists, not only for a lonely band of academics but also for many ordinary citizens, that plea bargaining compromises our aspirations to justice at the same time that it undermines the effective punishment of serious offenders.
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- Copyright © American Bar Foundation, 1994
References
1 See “Reno Brings Back the Plea Bargain,” Legal Times, 15 Nov. 1993, p. 1 (reporting criticism of a recent Justice Department directive that appears to allow federal prosecutors more scope to engage in plea negotiation).Google Scholar
2 Church, Thomas W. Jr., “In Defense of ‘Bargain Justice,’ 13 Law & Soc'y Rev. 509 (1979).Google Scholar
3 Easterbrook, Frank H., “Criminal Procedure as a Market System,” 12 J. Legal Stud. 289, 317 (1983).CrossRefGoogle Scholar
4 See text at notes 14–15 infra.Google Scholar
5 Lynch, David, “The Impropriety of Plea Agreements: A Tale of Two Counties,” 19 Law & Soc. Inquiry 115 (1994) (page references in text are to this essay).CrossRefGoogle Scholar
6 Church, , 13 Law & Soc'y Rev. at 515.Google Scholar
7 Resnik, Judith, “Judging Consent,” 1987 U. Chi. Legal F. 43 (questioning propriety of compromise settlement in civil litigation).Google Scholar
8 Church, , 13 Law & Soc'y Rev. at 515.Google Scholar
9 Schulhofer, Stephen J., “Criminal Justice Discretion as a Regulatory System,” 17 J. Legal Stud. 43, 78–79 (1988).CrossRefGoogle Scholar
10 Alschuler, Albert W., “The Prosecutor's Role in Plea Bargaining,” 36 U. Chi. L. Rev. 50 (1968); Schulhofer, , 17 J. Legal Stud. at 50–53.CrossRefGoogle Scholar
11 Schulhofer, , 17 J. Legal Stud. at 53–56; Schulhofer, Stephen J. & Friedman, David D., “Rethinking Indigent Defense: Promoting Effective Representation through Consumer Sovreignty and Freedom of Choice for A11 Criminal Defendants,” 31 Am. Crim. L. Rev. 73 (1993).Google Scholar
12 Church, , 13 Law & Soc'y Rev. at 521 (cited in note 2).Google Scholar
13 Easterbrook, , 12 J. Legal Stud. at 309 (cited in note 3).Google Scholar
14 Burger, Warren, “The State of the Judiciary—1970,” 56 A.B.A.J. 929, 931 (1970). Compare Peter Nardulli, “The Caseload Controversy and the Study of Criminal Courts,” 70 J. Crim. L. & Criminology 89, 91–93 (1979) (questioning the case pressure explanation for plea bargaining). Nardulli found in Chicago, as Lynch finds in Washington County, substantial excess capacity for trying cases.Google Scholar
15 E.g., James Eisenstein & Herbert Jacob, Felony Justice (Boston: Little, Brown, 1977); Milton Heumann, Plea Bargaining (Chicago: University of Chicago Press, 1978).Google Scholar
16 Schulhofer, Stephen J. No Job Too Small: Justice without Bargaining in the Lower Criminal Courts,” 1985 A.B.F. Res. J. 519, 592–98.Google Scholar
17 See US. Department of Justice, Bureau of justice Statistics, Sourcebook of Criminal Justice Statistics—1992, at 512 (1993).Google Scholar
18 Church, , 13 Law & Soc'y Rev. at 512 (cited in note 2).Google Scholar
19 Schulhofer, Stephen J., “Is Plea Bargaining Inevitable 97 Harv. L. Rev. 1037, 1051, 1082 (1984) (pleas were obtained without any concessions in roughly 28% of the felony cases sampled).CrossRefGoogle Scholar
20 Restructuring the Plea Bargain,” 82 Yale L.J. 286, 301–2 (1972).CrossRefGoogle Scholar
21 See U.S. Sentencing Guidelines § 3E.1.1 (1992).Google Scholar
22 Nagel, Ilene H. & Schulhofer, Stephen J., “A Tale of Three Cities: An Empirical Study of Charging and Bargaining Practices under the Federal Sentencing Guidelines,” 66 S. Cal. L. Rev. 501 (1992).Google Scholar
23 Schulhofer, , 97 Harv. L. Rev. at 1051, 1082 (55% of cases were tried, and an additional 17% were guilty pleas induced by some concessions: without concessions, 70–75% of the defendants would have elected trial).Google Scholar
24 Id. at 1085–86 & nn. 160 & 161.Google Scholar
25 Id. The calculations are premised on the assumption that 5% of all cases would be resolved by jury trial and that this figure would remain constant as the jurisdiction moved cases from disposition by guilty plea to disposition by bench trial. Shifting each 10% segment of the caseload from plea to bench trial would require a 3% increase in the judicial resources devoted to the adjudication stage. For analysis of the resources required to eliminate plea concessions in misdemeanor cases, see Schulhofer, 1985 A.B.F. Res. J. at 574–77 (cited in note 16) (a move from 10% to 50% trial rate in misdemeanor cases could require 25% increase in court resources devoted to adjudication stage).Google Scholar
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