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Criminal Procedure

Georgia State University College of Law

2008

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Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey Jan 2008

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

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The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune ...