Law Commons^™

Plea Bargaining For The People, Daniel S. Mcconkie Jr.

College of Law Faculty Publications

Our criminal justice system must be democratic enough to allow for significant citizen participation. Unfortunately, our current system cuts the people out. Instead of juries, plea bargaining professionals like prosecutors, defense attorneys, and judges decide most cases. Plea bargaining does efficiently process cases but, in addition to its well-known coercive aspects that warp case outcomes, ignores what I call “criminal justice citizenship.” This refers to the people’s privilege to participate on an equal basis in the criminal justice system. That participation strengthens our democracy, shores up the legitimacy of the system, and helps to ensure that the system, within constitutional …

Criminal Justice Citizenship, Daniel S. Mcconkie Jr.

College of Law Faculty Publications

The American criminal justice system is fundamentally democratic and should reflect an ideal of citizenship that is equal, participatory, and deliberative. Unfortunately, the outcomes of criminal cases are now almost always determined by professionals (prosecutors, defense attorneys, and judges) instead of by juries. This overly bureaucratized system of adjudication silences the voice of the people. A better system would strengthen “criminal justice citizenship,” which refers to the right of the citizenry to participate, directly and indirectly, in the criminal justice system and to deliberate in its workings.

The three key principles of criminal justice citizenship are membership, participation, and deliberation. …