Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining (original) (raw)
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Comments on the history of plea bargaining
Law & Soc'y Rev., 1978
Both Alschuler and Friedman provide valuable data on the history of plea bargaining, showing the emergence of the guilty plea in the mid-nineteenth century and a large increase in plea bargaining after 1900. If this material is to aid our understanding of contemporary ...
BIO: * Acting Professor of Law, UCLA School of Law. I would like to thank Rick Abel, Norm Abrams, Peter Arenella, Michael Asimow, Devon Carbado, Ann Carlson, Scott Cummings, Mirjan Damaka, Scott Dewey, David Dolinko, Sharon Dolovich, Robert Goldstein, Mark Greenberg, Lisa Griffin, Joel Handler, Cheryl Harris, Gia Lee, Harry Litman, Tim Macht, Jennifer Mnookin, Herb Morris, Danny Richman, Arthur Rosett, Seana Shiffrin, David Sklansky, Kirk Stark, Lynn Stout, Carol Steiker, Steve Yeazell, Noah Zatz, and participants in the workshop "Rethinking "Legal Transplants' and "Mixed Jurisdictions,'" organized by Cornell School of Law and the Institut d'Etudes Politiques de Paris (Science Po), Paris, July 2005; the 2005 UCLA Work-in-Progress Summer Colloquium; and the UCLA Junior Faculty Group for their helpful comments on earlier drafts. I also would like to thank Todd Martin and Nick Oberheiden for their research assistance and Scott Dewey and Todd Martin for e...
Toward a Common Law of Plea Bargaining
SSRN Electronic Journal, 2013
PLEA bargaining has been quite accurately described as "an informal, administrative, inquisitorial process of adjudication." 2 Those who brag of the superiority of the American criminal justice system often praise its adversarial, as opposed to inquisitorial, nature.' Yet for approximately ninetyfive percent of all defendants, the prosecutor is, for all practical purposes, the only judge they will encounter. 4 The prosecutor-judges who resolve these cases do so without necessarily referring to how any other case was resolved and do not follow any particular procedure, formal or informal, in deciding how to make offers.s Their decisions are not subject to review and largely avoid public scrutiny. 6 Defense lawyers, in part for reasons of their own making, are ill equipped for whatever idiosyncratic process a particular prosecutor's office
Law and Economics of Plea-Bargaining
SSRN Electronic Journal, 2000
Although highly criticized by legal scholars, plea-bargaining is probably the most transplanted instrument of criminal procedure. In contrast to most of the legal literature, for the French case (plaider coupable), we are not aware of any empirical assessment. 4 It includes summary procedures for those who do not contest guilt; unconditional and conditional dismissals; confession of guilt to get a reduction in the sentence, warnings and reprimands. 5 Obviously the lack of success depends, in part, of how we define plea-bargaining. If we take a broader definition of plea-bargaining as any form of negotiated sentence that avoids criminal trial, then we might account for half or more of the convictions in many civil law countries.
An Explicit Test of Plea Bargaining in the “Shadow of the Trial”
Criminology, 2014
Bargaining in the "shadow of the trial," which hinges on the expectations of trial outcomes, is the primary theory used by noncriminologists to explain variation in the plea discount given to defendants who plead guilty. This study develops a formal mathematical representation of the theory and then presents an empirical test of the theory using an innovative online survey with responses to a hypothetical case from 1,585 prosecutors, defense attorneys, and judges. The key outcomes are the probability that the defendant will be convicted at trial, the sentence for the defendant if convicted, and the best plea that the respondent would accept or offer. Variation in the outcomes is created through experimental variation in the information presented to the respondents. Structural regression models are estimated to fit the formal theoretical models, and the instrumental variables method is used to correct for measurement error in the estimate for probability of conviction. The data support the basic shadow model, with minor modifications, for only prosecutors and defense attorneys. Controlling for the characteristics of the individual actors and their jurisdictions adds explanatory value to the model, although these control variables did not affect the key coefficients from the shadow model.