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Full-Text Articles in Law
Two Types Of Consequentialism, Two Types Of Formalism: Reconsidering Bordenkircher In Light Of Apprendi, Michael M. O'Hear
Two Types Of Consequentialism, Two Types Of Formalism: Reconsidering Bordenkircher In Light Of Apprendi, Michael M. O'Hear
ExpressO
While the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue …
Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown
Executive Branch Regulation Of Defense Counsel And The Private Contract Limit On Prosecutor Bargaining, Darryl K. Brown
ExpressO
Criminal defendants’ right to counsel is regulated by courts, legislatures and, more recently and controversially, by the executive branch. Prosecutors recently have taken a more active role in affecting the power and effectiveness of defense counsel, especially privately retained counsel in white-collar crime cases. Under the Thompson Memo, prosecutors bargain to win waivers of attorney-client privilege and to convince corporate defendants not to pay the legal fees of corporate officers who face separate indictments. These tactics join longer-standing tools to weaken defense representation through forfeiture, Justice Department eavesdropping on attorney-client conversations of defendants in federal custody, and prosecutors’ power to …
Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentence Discounts, Nancy A. Combs
Procuring Guilty Pleas For International Crimes: The Limited Influence Of Sentence Discounts, Nancy A. Combs
Vanderbilt Law Review
Approximately 90 percent of all American criminal cases are disposed of by means of guilty pleas, and a large percentage of defendants brought before courts in England, Australia, and other countries that use common-law procedures likewise plead guilty. Why do substantial numbers of defendants in national criminal justice systems choose to convict themselves when they are entitled to have their guilt formally adjudicated? The widely accepted primary reason is that they receive sentencing discounts when they choose to selfconvict. Most defendants charged with domestic crimes plead guilty following a process of plea bargaining between defense counsel and prosecutors. Although plea …
Judicial Participation In Plea Negotiations: A Comparative View, Jenia I. Turner
Judicial Participation In Plea Negotiations: A Comparative View, Jenia I. Turner
Faculty Journal Articles and Book Chapters
Current rules in most U.S. jurisdictions prohibit judges from becoming involved in plea negotiations and limit the judges' role to reviewing a plea bargain once it is presented by the parties. The enclosed article surveys three systems that provide for more significant judicial involvement - Germany, Florida, and Connecticut - and suggests that a judge's early input into plea negotiations can render the final disposition more accurate and procedurally just. Based on interviews with practitioners and a review of the case law, the article outlines a model for greater judicial involvement in plea negotiations.
The Value Of Plea Bargaining, Scott W. Howe