Plea Bargaining

J-Term 2010

Professor:Josh Bowers

Office:Room WB 345

Phone:434.924.3771

Email:

Overview

This seminar will focus on plea bargaining and the guilty plea system. In modern America, the criminal trial is a rarity. In some jurisdictions, it is practically nonexistent. Instead, almost all cases are resolved by guilty pleas, typically entered into after some form of plea bargaining. We will discuss plea bargaining’s perceived advantages and disadvantages: whether, on the one hand, it unduly sacrifices accuracy and formality for the good of expediency; or, on the other hand, whether it facilitates compromise in arenas where adversarial heavy combat is less than optimal. We will explore the constitutional requirements of plea bargains and how plea bargaining has affected the roles and responsibilities of judges, prosecutors, and defense attorneys. We will analyze whether plea bargains successfully reflect probable trial outcomes, or, instead, whether institutional arrangements and incentives lead parties to reach agreements outside the shadow of law and trial. Finally, we will evaluate the adequacy of efforts to regulate, reform, and/or abolish plea bargaining.

Class Meetings

We will meet from 9:30 a.m. to 12 p.m. (everyday) fromMonday, January 18 - Friday, January 22.

Assignments & Grading

You are required to do all the reading and to participate in class and in a short (and fun) debate at the end of the week. Additionally, you must write three response papers, due by 7 a.m. on the morning of each class. Each response paper (i) must address some aspect(s) of the reading(s) for the upcoming class, and (ii) must be 2-3 (double-spaced) pages in length. The response papers should not be limited to a description of the readings; instead, I recommend thinking about the response papers as short op-eds, in which you provide your normative insights about the readings. Beyond this, you are free to construct your response papers as you see fit.

I will use the following scale to determine your final grade.

Response Papers / 75%
Participation / 25%

Reading Materials

The readings consist of articles, cases, and rules—all included in your reading packet. I cannot stress to you strongly enough just how important it is that you do the readings in full.

Two notes on the readings: (1) Please note that you are required to bring the reading packet to class. (2) At first glance, the readings may seem like a lot. They are not. I have assigned several readings for each class. But many of these readings are short excerpts from the source materials. Your nightly readings are rarely more than 30-40 pages (except slightly longer readings for the first two classes).

Movies

I will screen two films over the course of the week. One is a drama starring Forrest Whitaker (entitled, Criminal Justice) that accurately captures the real world of plea bargaining in New York courts. The other is a PBS documentary (entitled, Snitch) about cooperation agreements. I plan to start screening the films about a half hour after the conclusion of class on Wednesday and Thursday. Because I will show the films outside of scheduled class time, they are optional. However, I encourage you to attend. I think you will find the films informative and interesting. And, as an extra incentive, I will provide pizza and beverages during the screening of our first film (Snitch) and candy and beverages during the screening of our second film (Criminal Justice).

Office Hours

I follow an open-door policy. Accordingly, I have no formal office hours. Instead, you should feel free to drop by my office at any time. (I should be in the office most of the week of class.) If you do not catch me and would like to schedule a visit, please email

or call.

CLASS & ASSIGNMENT SCHEDULE

Syllabus may be subject to change

CLASS 1:
Monday, January 18 – Models of Procedural Justice; The Plea Bargaining Debate
Readings (packet pages 1-68):
  • Herbert L. Packer, Two Models of the Criminal Process, inThe Limits of the Criminal Sanction (1968)
  • Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909 (1992)
  • Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969 (1992)
  • Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992)
  • Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 Stan. L. Rev. 29 (2002)
Optional Readings:
  • Thomas W. Church, In Defense of “Bargain Justice”, 13 L. & Soc'y Rev. 509 (1979)
  • Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 Harv. L. Rev. 1037 (1984)
  • Albert W. Alschuler, Implementing the Criminal Defendant’s Right to Trial: Alternatives to Plea Bargaining, 50 U. Chi. L. Rev. 931 (1983)
  • John H. Langbein, Understanding the Short History of Plea Bargaining, 13 Law & Soc’y Rev. 261 (1979)

CLASS 2:
Tuesday, January 19 – The Rules of the Game; The Shadow of Trial
Readings (packet pages 69-120):
  • Brady v. United States, 397 U.S. 742 (1970)
  • Boykin v. Alabama, 395 U.S. 238 (1969)
  • United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992)
  • Rule 14 of the ABA Standards for Pleas of Guilty
  • Rule 11 of the Federal Rules of Criminal Procedure
  • John H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 4 (1978)
  • Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 292 (1983)
  • William J. Stuntz, Plea Bargaining in Law’s Disappearing Shadow, 117 Harv. L. Rev. 2548 (2004)
  • William J. Stuntz, Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001).
Optional Reading:
  • Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2456 (2004)

CLASS 3:
Wednesday, January 20 – The Roles in the Game: the Prosecutor and the Defense Attorney
Readings (packet pages 121-154):
  • Hill v. Lockhart, 474 U.S. 52 (1985)
  • Boria v. Keane, 99 F.3d 492 (2d Cir. 1996)
  • Santobello v. New York, 404 U.S. 257 (1971)
  • United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1972)
  • Bordenkircher v. Hayes, 434 U.S. 357 (1978)
  • Anthony Amsterdam, 1 Trial Manual 5, at §§ 201, 206 (2d ed. 1988)
Note: I will screen the film Snitch(PBS 1999) after class.
CLASS 4:
Thursday, January 21 –Cooperating Witnesses and 5K1.1 Departures
Readings (packet pages 155-184):
  • Daniel C. Richman, Cooperating Defendants: The Costs and Benefits of Purchasing Information from Scoundrels, 8 Fed. Sentencing Rep. 292 (1996)
  • Ronald S. Safer & Matthew C. Crowl, Substantial Assistance Departures: Valuable Tool or Dangerous Weapon?, 12 Fed. Sentencing Rep. 41 (1999)
  • In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (en banc)
  • Frank O. Bowman, Defending Substantial Assistance: An Old Prosecutor’s Meditation on Singleton, Sealed Case, and the Maxfield-Kramer Report, 12 Fed. Sentencing Rep. 45 (1999)
Note: I will screen the film Criminal Justice(HBO 1990) after class.
CLASS 5:
Friday, January 22 – Exploring the Fringes: Plea Bargaining and Innocence; Ad-Hoc Plea Bargaining
Readings (packet pages 185-228):
  • Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969 (1992)
  • Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. Legal Stud. 292 (1983)
  • Stephen J. Schulhofer, Plea bargaining as Disaster, 101 Yale L.J. 1979 (1992)
  • Robert E. Scott & William J. Stuntz, Reply, 101 Yale L.J. 1909 (1992)
  • North Carolina v. Alford, 400 U.S. 25 (1970)
  • Ethics materials on plea bargaining and innocence
  • Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 Tul. L. Rev. 695 (2000)
  • Richard A. Epstein, The Deferred Prosecution Racket, WSJ, Nov. 28, 2006.
  • Gina Barton, Mystery Resolved But Not Solved, Mil. J. Sent., Aug. 23, 2006
Optional Readings:
  • Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117 (2008)

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