the plea
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readings & links

FRONTLINE's "Real Justice"
In Boston, as elsewhere in the U.S., plea bargaining is a crucial part of keeping the wheels of justice turning in the criminal courts. In this 2000 report, FRONTLINE offered an intimate look at the real-life world of Boston's prosecutors, defense lawyers, judges and defendants and the issues they confront in choosing between guilty pleas or going to trial.


"The Case Against Plea Bargaining" (PDF)
This 2003 Cato Institute article outlines the ways in which "the government retaliates against individuals who exercise their right to trial by jury." In particular, author Timothy Lynch looks closely at the 1978 U.S. Supreme Court decision Bordenkircher v. Hayes -- considered to be the watershed precedent for plea bargaining -- and explains why the Supreme Court got it wrong. [Note: This is a pdf file; Adobe Acrobat required]


The American Bar Association Standards on "Pleas of Guilty"
Intended to serve as a guide for policymakers and those working in the criminal justice system, these standards cover every aspect of the plea process, including the roles and obligations of the prosecuting attorney, defense counsel and the judge.


The Repeal of the Sixth Amendment by the Courthouse Crowd
Albert W. Alschuler and Andrew G. Deiss offer an overview of how and why plea bargaining has come to dominate America's justice system, chronicling the evolution in attitudes over the past two centuries toward plea bargaining and the U.S. Supreme Court's 1978 decision that upheld its constitutionality.


Personal Failure, Institutional Failure, and the Sixth Amendment
Albert Alschuler outlines the many ways in which the plea bargaining system promotes inadequate defense assistance and why inadequate counsel is far more likely to occur in guilty plea cases than in trial cases. He writes that ensuring the effective assistance of counsel "is and will remain a dream in our plea bargaining system" because America's system of criminal justice "makes it impossible to determine whether defendants have received the effective assistance of counsel."


Plea Bargaining Outside the Shadow of Trial (PDF)
The thesis of this article by Stephanos Bibas is that scholars are wrong in viewing the shadow of trial as the overwhelming determinant of plea bargaining -- "shadow of trial" meaning the influence exerted by the strength of the evidence in the case and the expected sentence after a trial. The author details the many structural impediments that distort bargaining, such as costs, poor lawyering and lawyers' self-interest, and also cites the psychological biases that can skew bargains including "… self-serving biases … denial mechanisms, discount rates and risk preferences…" The author takes the continuation of plea bargaining as a given, but proposes some "practicable" solutions such as "smoothly graded sentencing guidelines and better discovery" to bring plea bargains more into line with "desirable outcomes and with trial shadows." This article is reproduced with permission of the author and the Harvard Law Review. [Note: This is a pdf file; Adobe Acrobat required]


On the Myth of Written Constitutions: The Disappearance of Criminal Jury Trial
In this article, John H. Langbein looks at why the framers of the U.S. Constitution "so valued" jury trial, why the jury trial is no longer the centerpiece of America's justice system, and the many ways in which plea bargaining is wrong. "In the end, however, the worst aspect of plea bargaining is simply the dishonesty," he concludes. "Charge bargaining has made our criminal statistics into hash. The person who committed murder is pretended to have committed manslaughter; the person whose real crime was child molesting is convicted of loitering around a schoolyard. Not only has this willful mislabelling turned our criminal statistics into a pack of lies, it has also forced us into the widespread practice of preferring arrest records over conviction records for a host of purposes."


"Substance and Procedure: Alford and Nolo"
Stephanos Bibas looks at the academic debate over plea bargaining, how and why lawyers and clients use "no contest" pleas to avoid admitting guilt, and criticizes Alford and nolo contendere pleas from a moral, educational perspective. "Even if these pleas were perfectly accurate … they would undercut reform, moral education, and vindication of victims and the community's moral norms. Many guilty defendants are in denial and find it hard to admit their crimes to others or even to themselves."


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posted june 17, 2004

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