Resolved: Plea bargaining ought to be abolished in the United States criminal justice system. (Bibliography)


Mental Competency Law And Plea Bargaining: A Neurophenomenological Critique (2016).  Discussion of neoliberalism in a paper on plea-bargaining may seem superfluous, perhaps even indulgent. However, it is our contention that the hegemonic influence of neoliberal values, especially and most importantly the law’s construction of the category homo economicus – the reasonable, rational, self-interested individual – is what has permitted the Supreme Court and members of Congress to perpetrate the myth that equitable contract is a constitutionally permissible way to rationalize the accused’s abdication of Fifth and Sixth Amendment rights in plea contexts. This final section of our article seeks to locate subjects within life-worlds that are constituted by an individualizing narrative premised on neoliberal values….Homo economicus – economic man – of classical economic theory is said to possess the following characteristics: “(1) maximizing (optimizing) behavior; (2) the cognitive ability to exercise rational choice; and (3) individualistic behavior and independent tastes and preferences.” n499 A less charitable description of homo economicus might frame him as being “cold and calculating, worries only about himself, and pursues whatever course brings him the greatest material advantage.” n500 “Homo economicus is a single-minded, wealth-maximizing automaton, who does not take into account “morality, ethics, or other people.'” n501 Important for our purposes, the adoption of the ideological rationalization of human beings as homo economicus leads to confronting juridical problems through application of cost-benefit analysis, where solutions are framed as incentives and disincentives. n502 The framing of homme juridique as homo economicus provides the jurisprudential legitimization for plea-bargaining. 

Robert Schehr, The Emperor’s New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining, 2 Tex. A&M L. Rev. 385, 386-87 (2015).

Oren Gazal-Ayal, Partial Ban on Plea Bargains, 27 Cardozo L. Rev. 2295, 2299-300 (2006) (suggesting a ban on plea bargaining in weak cases by prohibiting plea bargains that offer excessive concessions to defendants).

Peter A. Joy & Rodney J. Uphoff, Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining, 99 Iowa L. Rev. 2103 (2014).

Tina Wan, Note, The Unnecessary Evil of Plea Bargaining: An Unconstitutional Conditions Problem and a Not-So-Least Restrictive Alternative, 17 S. Cal. Rev. L. & Soc. Just. 33 (2007). S

Julian A. Cook, III, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, 75 U. Colo. L. Rev. 863, 908 (2004).

Russell D. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 Tul. L. Rev. 1237, 1239 (2008).

Richard Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 Hofstra L. Rev. 1349, 1399-1400, 1401 (2004) (stating how when a defendant says they are voluntarily entering a plea, an answer of “no” is not often a proper reflection of the circumstances; a record of the court proceedings must also reflect that the defendant is voluntarily entering the plea in order for the guilty plea to be deemed constitutional).

Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979, 1980, 1981 (1992).

Coercive Plea Bargaining. The unrecognized scourge of the criminal justice system. Catholic University Law Review.

Why Plea Bargaining Fails to Achieve Results.

Criminalizing Race: Racial Disparities in plea bargaining

Cops and pleas: Police officers influence on plea bargaining

The devil’s bargain: How plea agreements undermine justice

An end to plea bargains

Plea bargaining ad the eclipse of the jury

Plea bargaining: An unfair deal
Plea bargains are a travesty: There’s another way

US style plea bargaining prompts miscarriage warning

Aaron Swartz and the corrupt practice of plea bargaining

Innocence is irrelevant in the age of plea bargaining

Why innocent people plead guilty

The troubling spread of plea bargaining from America to the world

When race tips the scales in plea bargaining

Plea bargaining in the United States: a perversion of justice

The major flaw of plea bargaining in the criminal justice system

Counterplan Answers
Systemic barriers to effective assistance of counsel in plea bargaining


Plea Bargaining as Dialogue. (2015) Plea bargaining sparks vehement debate among scholars. Some scholars argue, for various reasons, that plea bargaining should be abolished, and that the criminal justice system can fare better without this practice. n6 Despite this criticism, the criminal justice system’s dependence on plea bargaining to resolve cases implies that it will constitute a mainstay of the criminal justice system for the foreseeable future. n7 Any attempt to reform the system, therefore, should take into account the significance of the practice of plea bargaining. n8 Accordingly, this Article accepts plea bargaining as a given and seeks to improve its practice. This Article argues that plea bargaining constitutes an  opportunity to circumvent the restrictions that exist during a trial or outside a trial, such as the inadmissibility of character evidence, and the need for the victim’s consent in restorative justice proceedings. This Article proposes to navigate the plea bargaining process in a way that creates a real dialogue with defendants. Such a dialogue can reduce the sense of alienation that defendants feel from their position as a defendant. To accomplish this dialogue, the prosecutor conducting the plea bargaining negotiations must be a different person than the prosecutor in the trial if negotiations break down.

This Article is presented in seven parts which are described as follows: Part II centers on a defendant’s sense of alienation within the criminal justice system in general and within the plea bargaining process in particular. Meursault, the protagonist of Albert Camus’ famous novella, The Stranger (or The Outsider), n9 serves throughout this Article as an example of a defendant who is excluded from his criminal justice process. Part III discusses the reasons for excluding character evidence from a trial. While justifying this rule, this Part defines its costs, using the figure of Meursault to exemplify the disadvantages of entering character evidence into trial. Part IV suggests making room for dialogue within the plea bargaining process in which a prosecutor, who is not in charge of conducting the trial against the defendant, would communicate the attitude of the prosecution regarding the seriousness of the offense, the harm caused to the victim and to society at large, and the prosecution’s initial position on the appropriate sentence. The defendant would then have the opportunity to present reasons for committing the offense, any remorse, and any feelings regarding the victim. In addition, the defendant can maintain innocence, assert that the offense committed or the degree of his culpability is less serious than that of the charge, or point to any mitigating circumstances. Part V explores the possibility of partially securing the ends of restorative justice through mutual prosecutor-defendant dialogue. Part VI comes to grips with possible drawbacks of the dialogue suggestion. Finally, Part VII presents the conclusions.

For The Sake Of Public Policy: Plea Bargaining Demands Sixth Amendment Protection Due To Its Prevalence And Necessity In The Judicial System. Ninety-seven percent of federal cases are settled by the plea bargaining process. n1 Ninety-four percent of state cases are settled by the plea bargaining process. n2 While the importance of plea bargaining and its role in the judicial system has long been recognized by the United States Supreme Court, the law governing plea bargaining, specifically the prosecutor’s and defense counsel’s behavior, has failed to fully develop over the past four decades. n3 In 2012, the Court took a step forward in developing law that affected the plea bargaining process. n4 Due to the powerful leverage prosecutors have in the plea bargaining process, this Article suggests the Court appropriately allowed for claims of ineffective assistance of counsel based on the rejection of a favorable plea offer. n5 This Article will discuss the current role of plea bargaining in the American judicial system as well as how the tests for effective counsel and valid guilty pleas came to govern the claims of interest. n6 The Background will examine the Court’s opinions in Strickland v. Washington, n7 Boykin v. Alabama, n8 and Hill v. Lockhart, n9 which all helped [*630] to develop the analysis applied to claims of ineffective assistance of counsel in the plea bargaining stage today. n10 Following the Background, the Argument will discuss the public policy reasons that support the plea bargaining system and why the system ought to remain a part of the American judicial system. n11 Next, the Argument will address the unfair advantage prosecutors have in the plea bargaining system. n12 In considering the unfair advantage, the Court appropriately clarified that a claim for ineffective assistance of counsel could be made if a defendant rejected a favorable plea offer. n13 The Argument will then consider two concerns with the companion cases discussed and suggest possible solutions to limit the unfair advantage prosecutors currently have over defendants during plea bargaining. n14 Finally, the Conclusion will outline why claims of ineffective counsel that result from the rejection of a favorable plea offer are acceptable and appropriate under the current judicial system.

Material To Whom?: Implementing Brady’s Duty To Disclose At Trial And During Plea Bargaining.  But none of this is inevitable. The fairness of our system of criminal justice depends, in part, on enforcing a duty that already exists. When the accused has not been convicted, courts must enforce Brady by compelling the government to disclose all evidence favorable to the accused, without reference to probabilities, “reasonable” or otherwise, and without regard to its potential impact on the outcome of the proceedings. Brady’s constitutional duty applies with equal force during plea bargaining, after indictment, and during the trial itself. My argument is as follows: Part I examines the Brady v. Maryland decision. “Materiality” in Brady does not entail speculation; it is defined by the basic laws of evidence. And taking the power to decide what must be disclosed away from prosecutors and giving it to judges so they can make trials fairer is part of Brady’s design. Part II looks at decisions interpreting Brady. The development of the “reasonable probability” test, when considered next to the doctrines that it was derived from and developed alongside–harmless-error review and prejudice–shows that, like those doctrines, it applies only during postconviction review. Part III fast-forwards to the current state of criminal justice in the United States, which is dominated by plea bargaining. At first it seemed like Brady’s passageway  to plea bargaining was obstructed by United States v. Ruiz. n9 But recently the Court has taken a more realistic approach to plea bargaining, moving away from Ruiz’s efficiency-oriented, contract-based model and towards treating the plea bargaining process as an informal, pervasive mode of adjudication that must be regulated. And plea bargaining will never discard its unconscionable reputation without the help of Brady’s duty to disclose, so Brady’s broad application is inevitable. Part IV looks at prosecutors, confronted with their own cognitive biases, amplified by their discretionary power, thwarted by the formless “reasonable probability” test, trying but failing to satisfy their constitutional obligations under Brady, and convicting innocent people as a result. Part V solves the problem by implementing Brady with a constitutional decision rule that defines materiality according to evidence law and holds prosecutors accountable with minimal judicial effort. Constitutional norms are best implemented by rules adapted to particular decision-making environments–here, the plea-bargaining and trial processes. Part VI concludes that, contrary to the assertions of some commentators, applying the “reasonable probability” test before conviction is not ordained by precedent. Indeed, my solution is more consistent with Brady, more consistent with judicial economy, and more consistent with fairness. [Note: This article is restricted at Hein Online, but Hein Online is accessible for free to NSDA members]

Throughout, I am guided by the principle that “justice suffers when any accused is treated unfairly,” n10 but my primary purpose is pragmatic: to give trial judges the strongest foundation, in law and in policy, to broadly implement Brady’s duty to disclose, ensuring fairness for all accused of crimes, whether they are plea bargaining, awaiting trial, or being tried

Collin Miller, Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667, 1701-02 (2013).

Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1910 (1992) (“Plea bargains are, as the name suggests, bargains; it seems natural to argue that they should be regulated and evaluated accordingly.”).

How criminal justice reformers want to change plea bargaining

Should prosecutors be forced to have judges approve their plea bargains?

A fairer deal for those who plea bargain

Lesson Plan: The benefits and drawbacks of plea bargains


Amy D. Ronner, Dostoyevsky and the Therapeutic Jurisprudence Confession, 40 J. Marshall L. Rev. 41, 101 (2006).

Talia Fisher, The Boundaries of Plea Bargaining: Negotiating the Standard of Proof, 97 J. Crim. L. & Criminology 943, 944-45 (2007) (stating that “in addition to their attributed efficiency, plea bargaining practices can be normatively anchored in the defendant’s autonomy of will, and in his right to effective control of his fate.”).

Douglas Guidorizzi, Should We Really “Ban” Plea Bargaining?: The Core Concerns of Plea Bargaining Critics, 47 Emory L.J. 753, 770 (1998). Gated at Hein Online. Hein Online is available to NSDA members.

Plea bargains are a painful but necessary tool

Alaska’s plea bargaining ban re-evaluated

Why judges and prosecutors engage in plea bargaining


Fred C. Zacharias, Justice in Plea Bargaining, 39 Wm. & Mary L. Rev. 1121, 1134 (1998).

Hon J. Harvie Wilkinson III, In Defense of American Criminal Justice, 67 Vand. L. Rev. 1099, 1127-28 (2014).

Waive Goodbye to Appellate Review of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances. This note generally argues that defendants should not have to agree to appeal waivers as part of plea bargains. “This note considers the applicability of the specific performance remedy for a defendant’s breach of an unconditional plea agreement, where the breach consists only of filing an appeal theoretically precluded by a waiver provision. This note explores constitutional principles, contractual principles, and public policy implications in arguing that the Court of Appeals for the Third Circuit has abandoned its role as an arbiter of justice and fairness in order to conserve judicial and prosecutorial resources. Specifically, court-sanctioned threats of withdrawn leniency, an enhanced sentence, further criminal charges, or a return to the status quo ante n22 may insulate, preclude the review of, and perpetuate injustice or illegality in the plea bargaining process. Criminal defendants with arguably meritorious claims of error on appeal should not have to forego an appeal for fear that the court will not only disagree with them, but will also subject them to enhanced sentences or further charges. Considering the panoply of rights criminal defendants already waive in order to plead guilty, it is essential that defendants at least retain the right to the review of the voluntariness of their decision to waive the right to appeal.”

The Underbelly Of The Beast: Misdemeanor Practice In The Era Of Broken Windows And Saturation Policing: How Bad Arrests Lead to Bad Prosecution: Exploring the Impact of Prior Arrests on Plea Bargaining.   Arrests and arrest records play an important role in the criminal justice system. Police agencies customarily use suspects’ prior record for investigative purposes, and courts use this information to set bail. Yet many arrest practices, and particularly stop-and-frisk, have long been criticized for disproportionately targeting young black and Latino men, and for their overall negative effect on communities of color. Not surprisingly then, arrest practices have received much attention, including among legal scholars and social scientists. However, what effect a prior arrest record has on other decision points, including prosecutorial decision making, is relatively unknown. In particular, we have a limited understanding about the relationship between prior arrest and plea bargaining. In this Article, we present three arguments – legal, moral, and cost arguments – to demonstrate the negative consequences of arrests and arrest records. We use a unique empirical study of the relationship between prior arrests and plea offers in the New York County District Attorney’s Office, to support two propositions: (a) arrests should be viewed as a last resort to be used whenever issuing warnings, citations, or summonses would be inadequate safeguards of public safety; and (b) prosecutors’ offices should not use prior arrest as a factor by default when making plea offer determinations unless they are able to show that using prior conviction record alone would not be sufficient to serve the purposes of justice, safety, and fairness. We argue that using nonconviction prior arrest in determining punishment in subsequent nonrelated cases is contrary to the principles of the presumption of innocence, race-neutral decision making, and wise criminal justice expenditure


Stefan Trechsel, Why Must Trials Be Fair? 31 Isr. L. Rev. 94, 119 (1997).  Gated at Hein Online

Restorative Justice

Cian Logan, Restorative Justice: Encouraging More Meaningful Engagement with the Criminal Justice System, 13 U. C. Dublin L. Rev. 39, 40 (2013).

Cheryl G. Bader, “Forgive Me Victim for I Have Sinned”: Why Repentance and the Offender Justice System Do Not Mix – A Lesson from Jewish Law, 31 Fordham Urb. L.J. 69, 94 (2003).

Jeffrie G. Murphy, Well Excuse Me! – Remorse, Apology, and Criminal Sentence, 38 Ariz. St. L.J. 371, 379 (2006).

n165. Lode Walgrave, Investigating the Potentials of Restorative Justice Practice, 36 Wash. U.J.L. & Pol’y 91, 126 (2011).

Cheryl G. Bader, “Forgive Me Victim for I Have Sinned”: Why Repentance and the Offender Justice System Do Not Mix – A Lesson from Jewish Law, 31 Fordham Urb. L.J. 69, 94 (2003).

Jeffrie G. Murphy, Well Excuse Me! – Remorse, Apology, and Criminal Sentence, 38 Ariz. St. L.J. 371, 379 (2006).

n165. Lode Walgrave, Investigating the Potentials of Restorative Justice Practice, 36 Wash. U.J.L. & Pol’y 91, 126 (2011).

Robert Schehr, From Restoration to Transformation: Victim-Offender Mediation as Transformative Justice, 18 Mediation Q. 151, 153 (2000).


See Wendy Brown, American Nightmare: Neoliberalism, Neoconservatism, and De-Democratization, 34 Pol. Theory 690, 693 (2006).


WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 47-50, 285-87 (2011) (discussing consequences of mass incarceration of black males)..  This is a book.  Related article.

Interesting Morality Arguments

Mario J. Rizzo, The Problem of Moral Dirigisme: A New Argument Against Moralistic Legislation, 1 N.Y.U. J.L. & Liberty 789, 832 (2005);

Constitution Impacts

Mitchell N. Berman, Constitutional Decision Rules, 90 VA. L. REV. 1, 91-92 (2004) (discussing how the inherent “epistemic uncertainty” of adjudication makes constitutional decision rules necessary).

van H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817, 845-49 (1994) (describing different aptitudes of appellate and trial courts).


Plea bargaining and international criminal justice

Post trial

Post trial plea bargaining in capital cases. lea bargaining accounts for over ninety percent of criminal convictions and it dominates the American criminal justice system. Yet, once a defendant is convicted, bargaining almost completely disappears from the system. Even though years of litigation are on the horizon, there is nearly no bargaining in the appellate and habeas corpus process. There are two reasons for this. First, prosecutors and courts typically lack the power to alter a sentence that has already been imposed. Second, even if prosecutors had the authority to negotiate following a conviction, they would have little incentive to do so. Affirmance rates in ordinary criminal cases approach ninety-five percent in many jurisdictions. Because the government has little incentive to bargain, defendants slowly churn their way through the formal appellate and habeas process.

The lack of post-trial bargaining makes perfect sense in ordinary criminal cases. It does not make as much sense in death-penalty cases, however. Death sentences are followed by decades of litigation. And, more importantly, challenges to death sentences are often successful. Capital cases are reversed at alarming rates, and re-trials typically follow the reversals. Faced with years of appellate litigation that it might not win, and the prospect of a re-trial and another slew of appeals, the State should have an incentive to bargain in its weakest cases. And the convicted individual faced with a death sentence likely has an even stronger incentive to bargain.

This Article argues that governors should not simply think about clemency as a tool to prevent morally questionable executions. Rather, governors should regularly exercise their commutation power as a form of plea bargaining to clear weak cases out of the system. In exchange for inmates foregoing further appeals, governors could commute death sentences to terms of imprisonment. Clemency bargaining fits squarely within governors’ unreviewable commutation power and would save tens of millions of dollars by ending decades of unruly litigation.

Death Penalty

Death as bargaining chip: Plea bargains in capital cases