CrimProf Blog

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

Wednesday, May 20, 2020

Jolly and Prescott: Beyond Plea Bargaining

Richard Lorren Jolly and J.J. Prescott (University of California, Berkeley - School of Law and University of Michigan Law School) have posted Beyond Plea Bargaining (62 B.C. L. Rev. _ (2021 Forthcoming)) on SSRN. Here is the abstract:
Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining — i.e., agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or sentencing. But a traditional plea agreement is just the most visible instance of criminal settlement and is nowhere close to the universe of possible arrangements. And in terms of their fundamentals, criminal settlements are essentially indistinguishable from civil settlements: the parties exchange what they have for what they prefer in order to advance their respective interests in cost minimization, risk mitigation, and value maximization as part of an atomized or comprehensive settlement agreement. Focusing only on a defendant’s promise to plead guilty masks the diversity and complexity of the agreements into which defendants and prosecutors may and regularly do enter.

This Article advances a comprehensive framework of criminal settlement — one that leverages incomplete or partial settlements as an analytical frame that stretches beyond plea bargaining.
As in the civil context, criminal settlements need not resolve disputes outright but may instead limit or redefine a dispute in a way that the parties find mutually beneficial. A critical difference in the criminal context, however, is that these bargains necessarily take place in the shadow of judicial discretion regulating access to the state’s punitive power. Consequently, prosecutors and defendants consent to manipulate procedures, issues, and outcomes in order to constrain or influence judges in ways congruent with their interests. But judges are not passive and can act strategically to shape the types of bargains we observe. By modeling this interplay between parties and judges, a more complete picture emerges of the dynamics, outcomes, and policy implications of criminal settlement.

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