CrimProf Blog

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

Wednesday, August 5, 2015

Schehr on The Unconstitutionality of Plea Bargaining

Robert Schehr (Northern Arizona University) has posted The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining on SSRN. Here is the abstract:

United States Supreme Court and jurisprudential rationalizations for the constitutionality, centrality, and finality of plea-bargaining signify intellectual dishonesty, ignorance of human behavior and decision-making, and a state-sanctioned threat to personhood and liberty in the United States of America. It is the Author’s purpose to expose the imperious practice of plea-bargaining for what it is — a cynical and intellectually dishonest institutional remedy for an unwieldy judicial system that has knowingly rationalized the practice to facilitate expedient resolution of ever-increasing caseloads. In order to establish plea practice as constitutional, the Supreme Court was forced to employ a jurisprudential discourse that shifted from the due-process language found in criminal law, especially the protections afforded by the Fifth and Sixth Amendments, towards contract law where defendants personifying homo economicus are “free” to negotiate away their rights. Beginning in 1930, and again in 1970, the Supreme Court applied an entirely novel standard to the adjudication of criminal cases, and it rationalized its decision on the need for efficiency. What is at stake is nothing less than the integrity of the Constitution, the Bill of Rights, and whatever still remains of an American sense of personhood under the law. The erosion of our rights that are so intimately associated with freedom due to plea-bargaining is an unprecedented injustice that cannot continue.

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Finally! An ‘Article’ that makes sense. One that refuses to accept the Art-of-Un-Defending via: Junk-Pleas as the acceptable norm. I’d shake your hand & hug you if it were possible. *If you wish to add an Update or continue with a future Series regarding abuses of the unnecessary plea bargain process (aka: The Texas TapOut) I have a Texas case or two for your consideration.
Warning, be prepared to say WTF? a lot, as you scratch your legal forehead with thoughts of – they can’t do that, as you realize that they already did it in a Team Effort & got away with it.

Posted by: Thomas R. Griffith | Aug 6, 2015 9:19:23 AM

The criminal justice system strikes me as turkey shoot for prosecutors but I like the way Schehr puts it much better. I know of several cases worthy of Schehr's collection of outrageous plea-bargain stories.

Posted by: John K | Aug 9, 2015 2:45:43 PM

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