CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, July 18, 2013

Wilson, Jara & Dornier on Plea Bargaining and the Legislative Response

Two manuscripts have been posted on SSRN on this topic. One is Nathan Schaal Wilson and Gabriela Jara (Independent and Duke University - School of Law), Plea Bargaining and the Legislative Response. Here is the abstract:

Plea bargaining in the United States has been an issue of debate for years. Opponents argue that it unfairly coerces defendants into pleading guilty and undermines the rule of law. Supporters cite plea bargaining as a contract-like agreement between two parties which yields efficient results. These viewpoints tend to focus on plea bargaining primarily in the individual context, as a one-shot negotiation between a prosecutor and a defendant under the existing criminal law. This approach understates the importance of American plea bargaining as a system of policy making in the United States. A simple two party contract framework fails to account for the movement of the criminal law as a whole, which we envision as a response to omnipresent plea bargaining. 

With plea bargaining in over 90% of cases, simply increasing the amount and severity of crimes on the books will yield the same punitive outcome, but become increasingly disconnected to reality, legality, or good policy. Unbridled prosecutorial discretion glosses over the cost of overcriminalization, mitigating the full effect of the criminal law and undermining legislative accountability. When unpalatable results are reached by enforcement of this system, we may question prosecutorial decisions rather than address the underlying statutes that create unreasonable results. 

With unfettered bargaining as the new de-facto criminal policy in the United States, political and private actors can and will account for this shift by adjusting their own actions and perceptions. This means that the American form of plea bargaining cannot provide a long term fix for the very problems believed to necessitate its existence, but only push the criminal law into increasingly flawed directions and then try to correct to the status quo ante. It is a feedback loop, which may only impede the development of sound and sustainable rules of criminal procedure and criminal policy.

The second is Orane Dornier (University of Cologne), Commentary on Nathan Schaal Wilson and Gabriela Jara's ‘Plea Bargaining and the Legislative Response’. Here is the abstract:

This article offers a commentary, from a comparative perspective, on Nathan Schaal Wilson and Gabriela Jara’s article (in this collection) ‘Plea Bargaining and the Legislative Response’. The authors see the phenomenon of plea bargaining not only as an agreement between the government officials and the accused (or rather counsel for the accused) as the two “parties” to the criminal matter, but as a de facto part of criminal policy. They point to the development of a “feed-back loop” whereby plea bargaining lowers the sentences actually imposed by courts and thereby pushes legislatures toward raising sentence levels. In this system, it is left to prosecutors and their discretionary power to achieve the sentence levels actually desired by the legislature. 

This commentary takes a comparative approach in outlining possible solutions for the problems caused by plea bargaining, using a detailed comparative analysis of the German model in particular. 

Part I considers the existing and newly implemented rules in German law intended to regulate and limit plea bargaining. Here the question arises whether these are sufficient to keep plea bargaining under control. Part II considers whether German law may even be a source of inspiration for the US system. 

Of course the question remains whether legal systems as different as those of Germany and the US can even be compared, and if so, whether solutions can be drawn from such comparison.

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