The Screening/bargaining Tradeoff

By Wright, Ronald; Miller, Marc | Stanford Law Review, October 2002 | Go to article overview

The Screening/bargaining Tradeoff


Wright, Ronald, Miller, Marc, Stanford Law Review


 
INTRODUCTION 
I. A FALSE DICHOTOMY: PLEA BARGAINING VERSUS TRIALS 
   A.      The Traditional Plea Bargain/Trial Tradeoff 
   B.      Traditional Alternatives to Plea Bargaining 
     1.    Short trials 
     2.    Plea bans 
II. THE SCREENING ALTERNATIVE 
   A.      Screening as Random Event of Plan? 
   B.      Screening as Threat of Opportunity? 
   C.      Setting Prosecutorial Goals from the Inside 
   D.      Internal Prosecutorial Responses to Plea Bargaining 
III. THE SCREENING/BARGAINING TRADEOFF IN PRACTICE: NODA DATA 
   A.      Harry Connic Sings a Reform Tune 
   B.      What a Difference a Trade Makes 
     1.    Direct evidence of open pleas, clues about charge bargains 
     2.    Secondary clues about the tradeoff 
     3.    Precharge bargaining? 
     4.    The role of sentence bargains 
   C.      Potential Unseen Effects of the Tradeoff 

INTRODUCTION

When it comes to plea bargaining, we have created a false dilemma. The dilemma grows out of the central reality of criminal adjudication in the United States. The vast majority of criminal cases are resolved through guilty pleas rather than trials. (1) Most of those guilty pleas result from negotiations between prosecution and defense. (2)

Scholars, judges, prosecutors, defense lawyers, and politicians have offered only two basic responses to the fact that guilt is mostly resolved through negotiated guilty pleas: They take it or they leave it.

Some take the system more or less as it is. They accept negotiated pleas in the ordinary course of events, either because such a system produces good results or because it is inevitable. (3) They might identify some exceptional cases that create an intolerable risk of convicting innocent defendants, or unusual cases where there are special reasons to doubt the knowing and voluntary nature of the defendant's plea. These special cases might call for some regulation. (4) But the mine run of cases, in this view, must be resolved with a heavy dose of plea bargains and a sprinkling of trials. (5)

Then there are those who leave it, arguing that our system's reliance on negotiated guilty pleas is fundamentally mistaken. Some call for a complete ban on negotiated guilty pleas. (6) Others, doubting that an outright ban is feasible, still encourage a clear shift to more short trials to resolve criminal charges. (7) Restoring the criminal trial to its rightful place at the center of criminal justice might require major changes in public spending, and it might take a lifetime, but these critics say the monstrosity of the current system demands such a change.

This dilemma about plea bargaining--take it or leave it--is a false one. It is based on a false dichotomy. It errs in assuming that criminal trials are the only alternative to plea bargains. In this erroneous view, fewer plea bargains lead inexorably to more trials; indeed, the whole point in limiting plea bargains is to produce more trials.

This paper offers a different choice, and points to prosecutorial "screening" as the principal alternative to plea bargains. (8) Of course all prosecutors "screen" when they make any charging decision. By prosecutorial screening we mean a far more structured and reasoned charge selection process than is typical in most prosecutors' offices in this country. The prosecutorial screening system we describe has four interrelated features, all internal to the prosecutor's office: early assessment, reasoned selection, barriers to bargains, and enforcement.

First, the prosecutor's office must make an early and careful assessment of each case, and demand that police and investigators provide sufficient information before the initial charge is filed. (9) Second, the prosecutor's office must file only appropriate charges. Which charges are "appropriate" is determined by several factors. A prosecutor should only file charges that the office would generally want to result in a criminal conviction and sanction.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Screening/bargaining Tradeoff
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.