"Plea Bargaining in the Virtual Courtroom"

The title of this post is the title of this forthcoming book chapter authored by Thea Johnson now available via SSRN.  Here is its abstract:

For many decades, courts across the United States have experimented with administering justice in virtual spaces.  But the COVID-19 pandemic accelerated those experiments in some jurisdictions and forced other jurisdictions to adopt new technologies to process cases.  While trials, particularly jury trials, were difficult to move into the online sphere, the plea process was easily transferable to the virtual world.  Lawyers could negotiate cases via phone, text or video. Judges could see defendants from their homes, or via video from jail.  Technologies like Zoom made it easy for the lawyers, clerks and even members of the public, to join the proceedings.

This chapter reflects on the intersection of these virtual experiments and the plea process.  It argues that, in some ways, the move to virtual spaces has had very little impact at all on the process.  The negotiation of a plea has always been virtual to some degree.  Well before the pandemic, lawyers communicated across platforms, often with little input from either defendants or victims, to reach resolutions.  To the extent that the loss of the criminal courtroom has had an impact on the interactions between lawyers, it is mostly as a result of them losing those informal spaces —  courtroom hallways and back corners — where much of the real-time deal-making occurred.  This chapter argues that the shift away from informality might have salutary effects, including increasing the likelihood of the parties creating a record of plea negotiations, and otherwise slowing down what is often a quick and frenzied process.  More importantly, observing the virtual plea process helps us challenge assumptions about the importance of the physical space of the courtroom, and the interactions that happen within it.  Indeed, an unintended benefit of moving to virtual proceedings has been to release defendants from the punishment of merely attending court.  As Malcolm Feeley identified in his work nearly four decades ago, the process of being in the courtroom, separate from any of the formal outcomes associated with the criminal system, is itself a form of punishment.  Without courtrooms, defendants are freed from the constraints of a physical space that has often been used to degrade them.  As this chapter explores, in the case of plea bargaining, a virtual world may be a world in which defendants can claim more autonomy and respect during the plea process.