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August 13, 2010

"Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias"

It seems like I have decided to make this summer Friday a good day for reading about plea bargaining. In addition to this recently noted piece, the title of this post references another great-looking plea bargaining read available here via SSRN. Authored by Michael Cassidy, here is the abstract:

In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.

August 13, 2010 at 03:55 PM | Permalink


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Liability shrinks the entire enterprise. Immunity grows the entire enterprise.

The absolute immunity and discretion granted these lazy, incompetent government workers has grown their worthless enterprise. They allow massive criminality, and railroad large numbers of innocent people, many of whom violated invalid, garbage mala prohibitae. Worse, they themselves are at will employees subject to the capricious, self-dealing decisions of their political hack superiors. Should one try to do a good job, he will be crushed.

The first remedy is to admit they suck. The second is to end all immmunity and discretion. No one has such privileges, and no one else is doing such a horrible job protecting the public. While their output fully justifies applying strict liability, we do not want to be too harsh. Professional standards of due care should be sufficient. All biased, pro-criminal judges should be removed by federal marshals, to ease their work. The evidence of bias should be limited to any rise in the crime victimization rate in the jurisdiction, an objective measure.

Posted by: Supremacy Claus | Aug 14, 2010 11:59:43 AM

It's a glorified yet stealthy extortion racket: Plead guilty or we'll make you wish you had...regardless of whether your innocent or wrongly accused.

Posted by: John K | Aug 15, 2010 12:00:51 PM

...whether YOU'RE innocent..

Posted by: John K | Aug 15, 2010 1:12:38 PM

works for me SC i think having immunity from your boss is the hight of criminal stupidity! Sorry they are OUR employees!

Posted by: rodsmith | Aug 15, 2010 3:13:01 PM

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