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April 1, 2017

"Civilizing Criminal Settlements"

The title of this post is the title of this interesting new article authored by Russell Gold, Carissa Byrne Hessick and F. Andrew Hessick now available via SSRN. Here is the abstract:

Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways.  The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants.  This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor.  By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution.  Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously.  Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.

This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements.  It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties.  In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation.  Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations.  The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.

April 1, 2017 at 05:30 PM | Permalink


The plea deal is a methodology of the Inquisition 1.0 adopted by the Inquisition 2.0, the criminal cult enterprise that is the American lawyer profession.

Plea deals funded the sumptuous treasures of the Vatican. Today, they are defunding productive entities, totally toxic to our economy, taking out entire sectors. They are funding the worthless garbage aims of big government and empowering cult criminals. Government is a wholly owned subsidiary of the lawyer profession, no matter who the elected figurehead.

The Inquisition 1.0 ended when French revolutionary patriots beheaded and expelled 10,000 high church officials. This business model was so robust it lasted 700 years.

The American lawyer profession is the most powerful and wealthiest criminal enterprise in human history. It has fully infiltrated and completely controls the three branches of our worthless government.

The remedy for the Inquisition 2.0 will be the same. There is no way to take away $trillion or so much power from a criminal cult enterprise by reasoning or appeals to human caring.

Posted by: David Behar | Apr 1, 2017 8:46:54 PM

There are plenty of pieces out there by civil lawyers that are not at all impressed by the pressures that system generates. Particularly how plenty of judges push settlement in order to lessen their own workload.

Posted by: Soronel Haetir | Apr 1, 2017 11:42:58 PM

The constitution already gives defendants a valuable bargaining chip in the plea-bargaining system. Now what the authors want is more processes that have little bearing on answering the question of whether the defendant in fact committed the crime to drive the price up further and then to use that to discount the sentence.

A cursory review of this article reveals that some of the problems they cite have no bearing in the reality of day-to-day criminal justice. The idea that defendants are in the dark as to what evidence the prosecution has against them is complete and utter fantasy. The idea that the defendants don't know what facts the government will rely upon to convict them is additionally not a fair representation of the vast majority of cases.

This article represents an extreme disconnect between theory and reality. I have been a state prosecutor for nearly twenty years and I can count a handful of cases where the defense didn't know what the theory of guilt was, but this group complains about notice pleading and wants criminal complaints to read like a civil lawsuit. Insane and totally unconnected to reality in the vast majority of cases.

Posted by: David | Apr 2, 2017 11:35:07 PM

I could not agree more that the criminal justice system is crying out for summary judgment. Not only to prevent the case from overcharging and bringing frivolous claims to trial, but to let criminal defendants know when they have a crappy defense straight from the judge's mouth. A lot of good ideas here.

Posted by: Andrew Fleischman | Apr 4, 2017 2:11:06 PM


For states that have preliminary hearings, doesn't that have the same potential of weeding out groundless charges and, if the judge is so inclined, the opportunity to tell the defendant he may want to plead guilty? If not, can you explain why not?

In my experience, for most defendants who are out of custody, they are not ready to say the word guilty when that will result in immediate incarceration. They will only say that word when they have to such as the too good to be true deal is about to evaporate, or the extra burden of multiple future court appearances exceeds the expected loss wih a worse deal later. Summary judgement motions won't change these realities.

Indecision is part of human nature, especially with imperfect information.

Posted by: David | Apr 4, 2017 11:34:59 PM

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