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November 18, 2021

"How to be a Better Plea Bargainer"

The title of this post is the title of this new paper authored by Cynthia Alkon and Andrea Kupfer Schneider now available via SSRN. Here is its abstract:

Preparation matters in negotiation.  While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs.  A systemic model can be used to improve plea bargaining skills.  This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context.  The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own.  The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more.

The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

November 18, 2021 at 10:37 AM | Permalink


Plea bargaining is an abomination, second in US history only to slavery. It treats innocent and guilty exactly alike, though no two groups should be treated more differently. It replaces the presumption of innocence with treating guilt as the unquestionable axiom the whole system is built on. It is nowhere mentioned in the constitution. It requires defendants to lie, claiming that they're not being coerced, and every lawyer in the courtroom, including the judge, knows they're lying. Every accused person should get a trial, whether they want one or not. And if convicted their sentence should be no harsher than what people typically get today when plea bargaining to the same charges.

Posted by: Keith Lynch | Nov 18, 2021 5:27:18 PM

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