NCJ Number
144573
Journal
Yale Law Journal Volume: 101 Issue: 8 Dated: (June 1992) Pages: 1969-1978
Date Published
1992
Length
10 pages
Annotation
This article examines the Scott and Stuntz essay that argues for the retention of plea bargaining under reform proposals along contractual lines and supports the retention of plea bargaining, but on the basis of the concept of compromise rather than contract.
Abstract
The author notes that Scott and Stuntz identify a problem with plea bargaining only if plea negotiation is inferior to trial at distinguishing guilt from innocence. He argues there is no reason that negotiation should be less fair than trial, since trials come with a variety of rules that exclude probative evidence. During plea negotiations, the parties can consider all the evidence that will come in at trial, and then some. The parties to the negotiation are legal experts and know from experience which details are most likely to separate guilt from innocence. All these ingredients make for informed decisionmaking by both the prosecutor and the defendant under guidance from the defense attorney. Plea negotiation is an option that can benefit both the defendant and the prosecution under certain conditions. Defendants have the option to choose a trial at which guilt or innocence will be legally determined, or to plead guilty to receive concessions they esteem more highly than the rights surrendered by not going to trial. Defendants can thus use or exchange their rights in accordance their judgment as to what is in their best interest. Prosecutors, on the other hand, are able to obtain more convictions than if every defendant went to trial, and at less cost. Whereas, Scott and Stuntz favor contract regulation to ensure that defendants are not harmed by plea bargains, the author favors minimal regulation, since defendants are adequately motivated to achieve a compromise that is in their interest. Tight regulation may inhibit negotiation. For the Scott and Stuntz article, see NCJ- 144572. 22 footnotes