Law Commons^™

Rehabilitating Charge Bargaining, Nancy Amoury Combs

Faculty Publications

Nobody likes plea bargaining. Scholars worldwide have excoriated the practice, calling it coercive and unjust, among other pejorative adjectives. Despite its unpopularity, plea bargaining constitutes a central component of the American criminal justice system, and the United States has exported the practice to a host of countries worldwide. Indeed, plea bargaining has even appeared at international criminal tribunals, created to prosecute genocide and crimes against humanity--the gravest crimes known to humankind. Although all forms of plea bargaining are unpopular, commentators reserve their harshest criticism for charge bargaining because charge bargaining is said to distort the factual basis of the defendant's …

Theories Of Prosecution, Jeffrey Bellin

Faculty Publications

For decades, legal commentators sounded the alarm about the tremendous power wielded by prosecutors. Scholars went so far as to identify uncurbed prosecutorial discretion as the primary source of the criminal justice system’s many flaws. Over the past two years, however, the conversation shifted. With the emergence of a new wave of “progressive prosecutors,” scholars increasingly hail broad prosecutorial discretion as a promising mechanism for criminal justice reform.

The abrupt shift from decrying to embracing prosecutorial power highlights a curious void at the center of criminal justice thought. There is no widely accepted normative theory of the prosecutorial role. As …

Consolidating Local Criminal Justice: Should Prosecutors Control The Jails?, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Post-Trial Pleas Bargaining In Capital Cases: Using Conditional Commutations To Remove Weak Cases From Death Row, Adam M. Gershowitz

Faculty Publications

Plea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal …

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Faculty Publications

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of …

Anchors Away: Why The Anchoring Effect Suggests That Judges Should Be Able To Participate In Plea Discussions, Colin Miller

Faculty Publications

The “anchoring effect” is a cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all …

The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, Adam M. Gershowitz, Laura R. Killinger

Faculty Publications

No abstract provided.

An Informational Approach To The Mass Imprisonment Problem, Adam M. Gershowitz

Faculty Publications

The United States is plagued by the problem of mass imprisonment, with its prison population having risen by 500% in the last three decades. Because the overwhelming majority of criminal cases are resolved through plea bargaining, there is room for prosecutors to reduce mass imprisonment by exercising their wide discretion. At present, prosecutors likely do not give much consideration to the overcrowding of America 's jails and prisons when making their plea bargain offers. However, if prosecutors were regularly advised of such overcrowding they might offer marginally lower sentences across the board. For instance, a prosecutor who typically offers a …