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Articles 1 - 16 of 16
Full-Text Articles in Law
The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon
The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon
Cynthia Alkon
Virtually every criminal conviction in the United States is the result of a guilty plea, not a jury trial. Yet it was not until 2012, in the companion cases of Lafler v. Cooper and Missouri v. Frye, that the U.S. Supreme Court recognized a defendant's constitutional right to effective assistance of counsel during plea bargaining. Legal commentators suggested that these cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright." But will things really improve for defendants in the wake of Lafler and Frye? The simple answer is: "No." Lafler and Frye will not bring …
Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion
Introducing Plea Bargaining Into Post-Conflict Legal Systems, Cynthia Alkon, Ena Dion
Cynthia Alkon
Criminal justice systems around the world face overwhelming caseloads and ever-increasing pressure to handle more. This pressure can be even more serious in post-conflict countries that face additional problems such as limited resources and fragile political environments. In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help …
An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon
An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon
Cynthia Alkon
The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior …
Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon
Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon
Cynthia Alkon
In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …
What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon
What's Law Got To Do With It? Plea Bargaining Reform After Lafler And Frye, Cynthia Alkon
Cynthia Alkon
This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually …
Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon
Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon
Cynthia Alkon
Well over 90 percent of all criminal cases in the United States are resolved by plea bargaining and not by trial. This means that how plea bargaining works impacts nearly every criminal defendant. However, there are few restrictions to protect defendants in the negotiating process. One serious problem is that prosecutors regularly use hard bargaining tactics such as exploding offers, threats to add enhancements, take-it-or-leave-it offers, and threats to seek the death penalty. These hard bargaining tactics contribute to the often highly coercive atmosphere of plea bargaining that can lead innocent defendants to plead guilty. Pressure to plead guilty can …
Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia J. Alkon
Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia J. Alkon
Cynthia Alkon
No abstract provided.
The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, Cynthia Alkon
The Cookie Cutter Syndrome: Legal Reform Assistance Under Post-Communist Democratization Programs, Cynthia Alkon
Cynthia Alkon
Communism ended in most parts of Eastern Europe and the former Soviet Union over ten years ago. However, the legal and judicial systems in many of these nations seemingly defy reform efforts. What I call in this article the "Cookie Cutter Syndrome" describes the standard approach Western nations developed to assist legal reform in the former Communist world.' Despite vastly different conditions in these countries, the model for judicial reform remains very similar, and is rooted in litigation and adversarial practices. The question of whether an adversarial-based approach is appropriate becomes even more acute as assistance efforts focus more on …
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Lost In Translation: Can Exporting Adr Harm Rule Of Law Development, Cynthia Alkon
Cynthia Alkon
The question explored here is whether ADR processes introduced to aid in the development of rule of law to help build legitimacy with legal authorities and institutions could instead work against legitimacy or further undermine it. This article will question whether establishing a new ADR program is advisable in a country with endemic corruption that is struggling to keep, or maintain, a moderately functional legal system. In these countries, the general public may view informal practices that occur in private and without standard rules to be another form of corruption and promoting such practices could reinforce already existing attitudes about …
Making A Deal In Criminal Law, Cynthia Alkon
Making A Deal In Criminal Law, Cynthia Alkon
Cynthia Alkon
Professor Alkon describes her experiences using plea bargaining exercises in her first year, first semester, criminal law class.
The Increased Use Of Reconciliation In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern, Cynthia Alkon
The Increased Use Of Reconciliation In Criminal Cases In Central Asia: A Sign Of Restorative Justice, Reform Or Cause For Concern, Cynthia Alkon
Cynthia Alkon
This statement sums up the challenges lawyers, courts, legislatures, and other policymakers face when discussing mediation, reconciliation, or the use of other process alternatives in criminal cases in Central Asia. First, many people in the legal community of Central Asia have different understandings about the types of criminal cases appropriate for referral to alternative processes in lieu of criminal prosecution. Second, many people in the Central Asian legal community have attitudes about victims, defendants, and certain types of crimes that differ significantly from the attitudes held by the legal communities in other countries of the world. For instance, in Central …
The Flawed U.S. Approach To Rule Of Law Development, Cynthia Alkon
The Flawed U.S. Approach To Rule Of Law Development, Cynthia Alkon
Cynthia Alkon
The key flaw to the United States' approach to rule of law development is routinely including the "standard menu" of rule of law development assistance as a part of the overall development effort without regard to whether the recipient country is at a developmental stage where it is able to absorb some or all of this type of aid. This article uses Afghanistan as a case study. Despite a decade of assistance, Afghanistan remains a fragile and conflict-affected country, thus raising concerns about the value of the aid given and whether rule of law development aid should continue to be …
Plea Bargaining As A Legal Transplant: A Good Idea For Troubled Criminal Justice Systems, Cynthia Alkon
Plea Bargaining As A Legal Transplant: A Good Idea For Troubled Criminal Justice Systems, Cynthia Alkon
Cynthia Alkon
Countries struggling with overburdened criminal justice systems often decide to introduce U.S.-style plea bargaining as part of a larger process of criminal procedure reform. Plea bargaining, however, is not simply a technical change in process. Policymakers and rule of law assistance providers should consider the consequences of this new procedure beyond simple case processing. The introduction of plea bargaining requires legal professional to adapt to a new way of doing their jobs. It potentially changes how defendants and victims view the system. It also carries the potential to change how the general public views the legal system. This can be …
Women Labor Arbitrators: Women Members Of The National Academy Of Arbitrators Speak About The Barriers Of Entry Into The Field, Cynthia Alkon
Women Labor Arbitrators: Women Members Of The National Academy Of Arbitrators Speak About The Barriers Of Entry Into The Field, Cynthia Alkon
Cynthia Alkon
Labor arbitration imposes some of the highest barriers of entry in any field of alternative dispute resolution. Parties picking an arbitrator in a labor dispute typically know and trust the chosen arbitrator. Arbitrators usually have some prior experience in labor organizations or management before assuming the role of a neutral. This reality makes the field an "insiders club." A successful labor arbitrator not only has these strong personal and professional connections to the parties, but also experience, knowledge, and impartiality. This Article explores the barriers that women, in particular, face in entering this profession.
The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon
The U.S. Supreme Court's Failure To Fix Plea Bargaining: The Impact Of Lafler And Frye, Cynthia Alkon
Cynthia Alkon
In the 2012 companion cases of Lafler v. Cooper and Missouri v. Frye, the United States Supreme Court held that there is a right to effective assistance of counsel during plea bargaining, even when a defendant later loses at trial. Legal commentators suggested the cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright," that the cases will have a "significant effect,"' and that they were "the term's decisions with the greatest everyday impact on the criminal justice system." But, will things really change for defendants in the wake of Lafler and Frye …
The Right To Defense Discovery In Plea Bargaining Fifty Years After Brady V. Maryland, Cynthia Alkon
The Right To Defense Discovery In Plea Bargaining Fifty Years After Brady V. Maryland, Cynthia Alkon
Cynthia Alkon
No abstract provided.