Plea Bargaining as Disaster
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Description
Constitutional and doctrinal objections aside, plea bargaining seriously impairs the public interest in effective punishment of crime and in accurate separation of the guilty from the innocent. Unlike most defenders of American plea bargaining, Dean Robert Scott and Professor William Stuntz acknowledge these dangers. They pay close attention to prior research that has identified structural flaws in the bargaining system, and they make imaginative use of economic analysis to extend that work and reinforce its conclusions. But Scott and Stuntz do not take the next logical step and join those who have advocated the abolition of bargaining. Rather, they argue that abolition would make matters worse and that modest reform of the bargaining process can significantly reduce its harmful effects. Unfortunately, the Scott and Stuntz proposals only nibble at the edges of the problem. Their suggested reforms would have little impact on the inefficiencies and injustices of the American plea bargaining system. One might still choose to preserve rather than abolish bargaining, however, if Scott and Stuntz are right that abolition would aggravate existing problems. It is this feature of their argument that is most important, most original, and ultimately most disappointing. The Scott and Stuntz analysis does not successfully establish that abolition of bargaining would disadvantage the innocent. I argue, to the contrary, that abolition would serve both justice and efficiency.
Source Publication
A Criminal Procedure Anthology
Source Editors/Authors
Silas J. Wasserstrom, Christie L. Snyder
Publication Date
1996
Recommended Citation
Schulhofer, Stephen J., "Plea Bargaining as Disaster" (1996). Faculty Chapters. 1391.
https://gretchen.law.nyu.edu/fac-chapt/1391
