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A Wake-Up Call from the Plea-Bargaining Trenches

Published online by Cambridge University Press:  27 December 2018

Stephen J. Schulhofer
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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.

Type
Commentaries
Information
Law & Social Inquiry , Volume 19 , Issue 1 , Winter 1994 , pp. 135 - 144
Copyright
Copyright © American Bar Foundation, 1994 

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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