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Plea Bargaining: An Example of Negotiating With Constraints
Editors’ Note: Plea bargaining accounts for the disposition of a significant majority of criminal cases. Indeed, without this kind of negotiation, either the judicial and criminal prosecution systems would have to be radically enlarged, or they would collapse completely. Yet misunderstanding of how these negotiations work is rife. Alkon describes plea-bargaining’s varieties, its frequently severe constraints (which surprisingly affect prosecutors almost as badly as the defense), and outlines its potential to do better—with some relatively modest reengineering.
Imagine a negotiation that will decide where you live, where you might work, whether you will walk free or be imprisoned for many years, and whether you will be branded a criminal. Those are just some of the stakes for defendants during the average plea bargain negotiation. In the United States, well over 90% of those convicted of criminal offenses are convicted through plea bargaining. Plea bargaining, therefore, is the predominate process through which criminal cases are resolved. Plea bargaining is also an example of a negotiation with constraints, as each of the parties in the negotiation is constrained by a number of factors, including the existing law and extreme power imbalances. However, within these constraints, skilled negotiators can accomplish creative results, and plea bargaining itself has enabled the criminal justice system in the United States to experiment with new and innovative approaches to rehabilitation and punishment. This chapter will discuss how the players in the criminal justice system use strong negotiation skills to their advantage, including the ability to find common underlying interests.
This chapter will conclude that there are lessons from plea bargaining that are useful examples of what might be possible when negotiating in other highly constrained and restrictive environments.
How Does Plea Bargaining Work?
Plea bargaining is a negotiation to resolve a criminal case without trial. Due to the high numbers of criminal cases, and the expense and time required to have a jury trial for each case, the criminal justice system in the United States has come to depend on plea bargaining to efficiently handle criminal cases. Although it is the method by which well over 90% of cases are resolved, the defendant has no right to a plea bargain. Once a criminal case begins, it is the prosecutor’s decision whether to make a plea offer. Some of the factors that influence what kind of offer a prosecutor will make, or if they will make an offer, are the seriousness of the charges, the possible maximum sentence, the defendant’s criminal record, and the strength of the evidence. In an average criminal case, the prosecutor will make an offer at or before the first court appearance, the arraignment. With electronic discovery becoming increasingly common, prosecutors routinely give an initial plea offer with the discovery in the case. This means that the first offer is often made before there is any conversation between the defense lawyer and the prosecutor, before the defense attorney has seen the case, and often before the defense lawyer has met her client.
The vast majority of criminal cases are not serious crimes but are instead misdemeanors and lower level felonies such as drug offenses. Most defendants do not contest the facts; and contrary to TV dramas, many cases have no legal issues such as search and seizure motions. These less serious cases, such as driving while intoxicated, drug possession, and drug sales, are often factually similar. This means that prosecutors will have standard offers for defendants with similar cases and criminal records. However, these offers are standard only in the particular jurisdiction. What is standard in one court, or county, may be different in another court in a neighboring county or state or in the federal system. For criminal defendants, the important factors determining the plea offer are where they were arrested and the prosecutor’s evaluation of what the case is worth and what the plea offer will be. There are no nationwide, or even state-wide, standard offers. In cases where the facts are more unusual, or the case itself is more serious, prosecutors may decide not to make an offer. Prosecutors may also decide to not make an offer at arraignment, as they may want to further investigate the case before offering any plea deals. ...
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