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September 8, 2015

Two notable new papers about plea bargaining procedures and practices

Practitioners know that the vast majority of criminal convictions are the results of plea deals.  But it has taken some time for formal legal jurisprudence and especially legal scholarship to catch up to this reality.  Fortunately, a lot of smart folks are starting to pay a lot more attention to plea dynamics, and these two notable new papers on SSRN reflect these realities:

Plea Bargaining's Baselines by Josh Bowers

Abstract: In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice.  It is not so much that the Court has ignored coercion entirely.  Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation.  The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility.  A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so.  In this way, the Court’s coercion baseline is legalistic — it is defined by what the prosecutor is legally entitled to pursue.

Recently, however, the Court has shifted its constitutional focus from code law. In a series of right-to-counsel cases, it has redefined prevailing plea-bargaining practice as the benchmark.  This amounts to an emerging extra-legalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it.  Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so.  My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline — a proportionality baseline.  I defend this alternative extra-legalistic baseline and even prescribe a practical methodology for its discovery.  And, notably, my preferred approach is not without precedent.  The Court has applied analogously extra-legalistic baselines to claims of coercion in other constitutional contexts.

Training for Bargaining by Jenny Roberts and Ronald Wright

Abstract: While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys’ training.  Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they use every day.

Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself.  Our multi-phase field study examines the negotiation techniques that attorneys use during plea bargaining, as well as their preparation and training for negotiation.  This Article explores the data on the training aspects of our research.  It then discusses implications of the failure to train for bargaining by noting a variety of areas where training might improve case outcomes for defendants.

Surveys, interviews, and training agenda confirm our intuition about the lack of training for bargaining: Public defenders receive far less training in negotiation skills and strategies than they do in trial techniques.  Some defenders receive some limited training on negotiation skills in addition to trial skills, particularly when they first enter their offices. The topic of negotiation, however, almost disappears from the agenda for later training, even as trial skills remain front and center.

Leaders in public defender offices allow this training gap to continue when they view negotiation as more an art than a science, and not susceptible to rigorous analysis or systematic training.  The position that negotiation cannot be taught is demonstrably false and theoretically naïve.  Formal negotiation learning has proven effective in actual negotiations.  Negotiation theory also offers more concrete and comprehensive insights about sound practices than one can find in case law related to constitutional ineffective assistance of counsel, court rules and state statutes, or professional standards.

September 8, 2015 at 08:35 AM | Permalink

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