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February 22, 2012

"Crimes, Widgets, and Plea Bargaining: An Analysis of Charge Content, Pleas, and Trials"

The title of this post is the title of this notable new paper by Kyle Graham, which adds lots of interesting dimensions and insights to the never-ending debate over the impact of prosecutorial charging and plea bargaining discretion. Here is the abstract via SSRN:

This article considers how the composition and gravamen of a charged crime can affect the parties’ willingness and ability to engage in plea bargaining.  Most of the prevailing descriptions of plea bargaining ignore or discount the importance of charge content in plea negotiations.  In fact, one leading commentator has likened crimes to widgets insofar as plea bargaining is concerned.  In developing its counter-thesis, this article reviews seven years of federal conviction data, focusing on those crimes that produce the most and fewest trials relative to how often they are alleged; the most and fewest acquittals at trial; and the most and fewest plea bargains that involve a substantial alteration in charges.

Overall, the data demonstrate that the character of and circumstances that surround a particular offense can catalyze or frustrate plea bargaining.  Similar information to that utilized in and gleaned from this study, it is also argued, can and should be considered in connection with the adoption of new crimes and the re-evaluation of existing offenses. This information would provide legislatures with insight into how a proposed crime is likely to be utilized, and how current crimes are being used.

February 22, 2012 at 01:12 PM | Permalink


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The adjudicated charge is on the long list of lawyer fictions. Fictions is a synonym for lying. So any studies or policy decisions based on adjudicated charge have the validation of counting the number of chain rattlings at a seance.

Posted by: Supremacy Claus | Feb 22, 2012 2:12:34 PM

It's too late at night to go read the article, but I would point out that "plea bargaining" in the federal context isn't what most people think of when they hear about "bargaining". I'm aware that different districts have different philosophies, but in my experience, the usual "plea bargain" is "plead guilty and then whatever happens, happens". The Government may make some concession in light of a fast track program, and there are always outlying cases where the Government, for a variety of reasons, might be willing to agree to a plea to a lesser charge. But typically there is no bargaining to be done: the defendant is invited to plead guilty to the most serious charge alleged or take his chances in front of a jury. I've been told that there are districts where the parties insert into the plea agreement the guideline adjustments that will apply, but it appears this is not so much a process of negotiation as capitulation.

In my personal experience, people go to trial for the following reasons: (a) they are convinced of their own innocence (perhaps because they are in fact innocent); (b) they are pathologically unwilling to concede guilt, even in the face of overwhelming evidence; (c) the consequences of a conviction are so disastrous that even a slim chance of acquittal at trial is preferable to the certainty of a guilty plea; (d) the sentence reduction for pleading guilty is perceived as de minimus (e.g., "I can do that time standing on my head, let's roll the dice"); (e) they are competent, but still kind of crazy and couldn't really get through a plea colloquy, or else they're making some sort of political statement (tax protestors, terrorists). I guess (c) would be where "charge content" is relevant to the decision to go to trial, but whether the consequences of a conviction are disastrous depends on the circumstances of the case.

Posted by: C.E. | Feb 22, 2012 11:14:40 PM

An agency I worked for was charged with federal crimes. I offered to go after the District Attorney, and to counterattack the government, at my own expense. The arguments would include policy grounds. The personal destruction of the DA, even if it failed, would be an investment in the future, so the cult criminals would leave people alone. The boss declined my offer. He got a super discounted penalty (75% off) and agreed to a corporate compliance program.

After 5 years, the corporate compliance program ended. The boss came to me. He should have taken my offer. Even if the defeat in court had been complete, on every count, with full penalties, everyone would still be better off than after the compliance program.

DEA thugs then came after me. I demanded total e-discovery on their training, methods, their personal work records. There was total resistance during their very brief investigation. I told them, I was itching to take them to court, as individuals. Not only did they never return, they stopped their audits in the entire district.

You must inflict severe legal pain on federal officials. It is a patriotic duty to try to stop them. They are part of a criminal cult enterprise, trying to defund the productive male. There should be no quarter offered, nor any expected. As a former federal employee, this is the way it works. If you generate costs for your division, even if you completely right in your actions, you will be quietly pushed out of government within a year, after a brief face saving interval. So countersuits, e-discovery of massive records, bad publicity of federal bullying, any adverse court decision, they back up.

In these cases, I was confident nothing was done wrong and federal oppression was unjust. I don't know how I would react if I had committed serious crimes and got caught, with good evidence against me, such being a serial killer. The above tactics are for the innocent, wrongly accused defendant. Whatever your field, you will be a hero, not a pariah after standing up to the cult criminals.

Posted by: Supremacy Claus | Feb 22, 2012 11:39:16 PM

Currently, I am a defense attorney. For the past 7 years, however, I was a prosecutor. This experience has given me a good opportunity to see both sides of the aisle. From my experience on the state criminal level, the indicted charge plays a massive role in the plea bargaining process. For starters, depending on the nature of the indicted charge there may be very few rungs down the ladder a prosecutor could go in making an offer (e.g. charged with Assault 1st, a B violent felony in NY). In that example, depending on characteristics of the offender, the plea bargaining restrictions could limit a possible plea down to only a D violent felony. Therefore, the indicted charge plays a huge role from the very beginning on the world of possible plea offers....at least in NY.

Posted by: Joe Waldorf | Feb 23, 2012 12:38:52 PM

I largely agree with C.E., with a small addendum.

By a huge margin, the reason defendants plead guilty is that they are guilty, and they know the government has the goods to prove it. As C.E. says, there are some who feel like the sentence is going to be a hammer no matter what, so they role the dice on getting a windfall acquittal. There are a very few who believe they're innocent -- not because they are, but because they've been into so much self-justification for so long that they can't bring themselves to believe they did anything wrong.

Posted by: Bill Otis | Feb 23, 2012 2:50:40 PM

The blathering of Bill Otis. As if there is no such thing as vertical prosecutorial overcharging.

Posted by: Huh? | Feb 26, 2012 3:16:17 PM

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