Monday, April 10, 2017
Russell M. Gold, Carissa Byrne Hessick and F. Andrew Hessick (Wake Forest University - School of Law, University of North Carolina (UNC) at Chapel Hill - School of Law and University of North Carolina (UNC) at Chapel Hill - School of Law) have posted Civilizing Criminal Settlements (Boston University Law Review, 2017) on SSRN. Here is the abstract:
Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously. Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.
This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements.