FREE ELECTRONIC LIBRARY - Dissertations, online materials

Pages:     | 1 |   ...   | 3 | 4 || 6 | 7 |   ...   | 8 |


-- [ Page 5 ] --

71. See, e.g., Neil Vidmar, Sara Sun Beale, Mary Rose, & Laura F. Donnelly, Should We Rush to Reform the Criminal Jury?: Consider Conviction Rate Data, 80 JUDICATURE 286, 287-89 (1997) (reporting jury trial conviction rates in felony cases of 68.3% in North Carolina, 58.9% in Florida, 82.1% in California, 84% in Texas, 72.3% in New York State, and more than 80% in both drug and non-drug cases in the federal courts).

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

Summer 2013 Two Band-Aids 691

ty in 2001 dwarfed the number of acquittals at trial, 7,848 to 2,134. When the “remaining balance” cases are treated as acquittals or “non-convictions,” Cook County’s overall conviction rate in cases not resolved by guilty pleas drops to a rate resembling those that Abrams reported, 48%.72 Abrams’ study thus reveals that defendants who abscond receive lower sentences than defendants who plead guilty—that is, until they are caught. It also teaches us that extradited defendants receive lower sentences than defendants who plead guilty— that is, until they are tried in the jurisdictions to which they are sent. And it reminds lawyers never to urge clients to enter plea agreements when prosecutors are willing to dismiss their cases outright.73 The low conviction rates Abrams reported enabled him to place a large number of sentences of zero in the cauldron of sentences imposed following trials. This number was not typical of the American criminal justice system or even of Cook County.

Abrams’ study does not provide convincing evidence that defendants who stand trial generally achieve better results than those who plead guilty, and even if it did, it would not show that any of the defendants who entered plea agreements had been snookered.74 C. The Expected Difference Between Sentences Imposed Following Trials and Those Imposed Following Guilty Pleas Consider what offers and agreements should look like in a pleabargaining system that does only what bargaining prosecutors and defense attorneys acknowledge (and boast) that they do.

Viewing offers and agreements from this perspective will lead to a

72. ANNUAL REPORT, supra note 66.

73. Some dismissals occur after defendants have refused to enter plea agreements. For example, a prosecutor might have offered to permit a guilty plea to a misdemeanor in exchange for the dismissal of a motion to suppress evidence. The defendant might have declined the prosecutor’s offer and prevailed on the motion to suppress. With critical evidence suppressed, the prosecutor then might have dismissed the case. Other dismissals, however, occur because prosecutors recognize that their cases should never have been filed. An effort to determine whether “a plea is a bargain” should not include dismissals in the comparison group without differentiating among dismissals.

74. Abrams noted at the symposium that his findings were robust. He was confident that had he actually compared post-trial sentences to post-guilty-plea sentences, the posttrial sentences would have been less severe. Abrams might be correct, and it would be worth the effort to find out. The following section of this article considers circumstances that might explain findings like Abrams’ if these findings were replicated in a better conceived and better executed study.

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

692 Duquesne Law Review Vol. 51

few additional remarks about what might account for findings like David Abrams’.

Prosecutors readily acknowledge engaging in both “odds bargaining” and “costs bargaining.”75 That is, they offer lower sentences in exchange for guilty pleas both to eliminate the risk of acquittal at trial and to avoid the cost of trials.76 A prosecutor who engaged only in odds bargaining might estimate the likelihood of a defendant’s conviction at trial at 50% and the defendant’s probable sentence if convicted at trial at ten years. The prosecutor then might offer the defendant a sentence of five years in exchange for his plea. Prosecutors sometimes quote the line, “Half a loaf is better than none.” To be sure, this illustration is oversimplified. For most defendants, the first year of a prison term has greater disutility than the last, and part of an offender’s punishment consists, not of imprisonment, but of the stigmatization and disabilities that follow conviction. Sophisticated bargainers take account of these consequences and others, but the simplified illustration suffices here.

I have cast students in their first week of law school as prosecutors instructed by a superior to bargain with the sole goal of obtaining the most punishment they can for every taxpayer dollar expended.77 I then have asked them to consider what their last, best offer would be to a defendant whose likelihood of conviction at trial was 50% and who faced ten years of imprisonment if convicted. After a student has proposed a five-year offer, I have asked whether other students would increase or decrease it. Students invariably have struggled to justify lesser discounts from the predicted ten-year post-trial sentence. It typically has taken some cajolery on my part to prompt a student to give the correct answer from an economic or “bangs for the buck” perspective: the discount should be greater.

On the simplified assumptions noted above, a five-year offer would leave a risk-neutral defendant indifferent to the choice between guilty plea and trial.78 A cost-conserving prosecutor, howI owe this terminology to Paul Schectman.

76. See Albert W. Alschuler, The Prosecutor’s Role in Plea Bargaining, 36 U. CHI. L.

REV. 50, 52-85 (1968).

77. See Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289, 289 (1983) (“I argue in this essay that the aspects of criminal procedure treated with the greatest skepticism by academics and the popular press – prosecutorial discretion, plea bargaining, and sentencing discretion – may be understood as elements of a wellfunctioning market system.”) (internal citations omitted).

78. The assumption of risk neutrality is a further oversimplification:

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

Summer 2013 Two Band-Aids 693

ever, does not want the defendant to be indifferent. He hopes to avoid a trial and is prepared to engage in costs bargaining as well as odds bargaining. The prosecutor therefore tailors his offer, not to balance, but to overbalance the defendant’s chances of acquittal.

The prosecutor’s final offer might be four years, three or two. It might be influenced by how much he expects a trial to cost.

If defendants faced the same costs as prosecutors and were equally concerned to avoid them, costs bargaining would disappear from the calculus. Defendants, however, are not equally concerned to minimize costs. About 80% are indigent and are represented by public defenders or other appointed attorneys.79 They do not pay the costs of trials,80 and, at least in theory, their lawyers focus only on their interests, not the taxpayers’.

Defendants represented by private attorneys do pay some of the costs of trial, and the prospect of higher legal fees can influence them to plead guilty.81 Because limiting criminal punishment ranks highly on most defendants’ utility curves, however, they are not inclined to be frugal. “It’s like buying a casket,” one lawyer reported. “They’re not worried about how much it costs—until later.”82 Because cost concerns are asymmetrical, defendants should engage mostly in odds bargaining while prosecutors engage in both odds bargaining and costs bargaining. Agreement should One of the commodities that the representatives of the state “sell” during pretrial negotiations is certainty. During the period between arrest and trial, most defendants experience a great and understandable anxiety about what will happen to them. The promise that a prosecutor or trial judge offers in a bargaining session usually provides the first authoritative answer to that question that a defendant can secure. A trial, by contrast, represents what Oakland Public Defender John D. Nunes called “a plunge from an unknown height.”... [T]he reduction of anxiety—the minimization of grab-bag uncertainty—is itself a value to many defendants.

Albert W. Alschuler, The Trial Judge’s Role in Plea Bargaining, 76 COLUM. L. REV. 1059, 1080-81 (1976).


SELECTED FINDINGS: INDIGENT DEFENSE 4 (1996), available at http://bjs.gov/content/pub/pdf/id.pdf (reporting the percentage of felony defendants with appointed attorneys in America’s 75 largest counties).

80. Again, I oversimplify. The costs of trial include time and anxiety as well as money, and non-monetary costs can influence plea negotiations.

81. See Scott Shane, From Spy to Source to Convict, N.Y. TIMES, Jan. 6, 2013, at A1 (Former C.I.A. agent John Kiriakou “said he had paid his defense lawyers more than $100,000 and still owed them $500,000; the specter of additional, bankrupting legal fees, along with the risk of a far longer prison term that could separate him from his wife and children for a decade or more, prompted him to take the plea offer....”).

82. Jackson B. Battle, In Search of the Adversary System: The Cooperative Practices of Private Criminal Defense Attorneys, 50 TEX. L. REV. 60, 111 (1971).

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

694 Duquesne Law Review Vol. 51

come only when the prosecutor has made an offer that overbalances the defendant’s chances of acquittal.

When a defendant is certain to be acquitted at trial, the prosecutor cannot make an offer that will overbalance his chances of acquittal,83 but in almost every other case, he can. The prosecutor can get the most punishment for the government’s bucks by making such an offer, and the defendant can reduce his expected punishment by accepting it. Does it follow that, in a system of costs bargaining and odds bargaining, there should be no trials? Do cases go to trial only when defendants are so convinced of their innocence, so indignant about prosecutorial overreaching, or so ashamed to admit their guilt that they press their luck irrationally? Many cases do go to trial for those reasons, but the answer is probably no.

Even when both parties engage only in costs bargaining and odds bargaining, they may disagree about circumstances that influence the bargaining calculus: what post-trial sentence is likely, what subjective disutility (or suffering) various punishments are likely to impose, what a trial is likely to cost, and, perhaps most importantly, what chance the defendant has of winning at trial.

The differences in the parties’ estimates may prevent an agreement.

For example, although the prosecutor and defense attorney might both estimate the defendant’s probable post-trial sentence at ten years, the prosecutor might believe that the likelihood of conviction is 90% while the defense attorney might estimate it at 50%. The prosecutor then might conclude that agreeing to anything less than, say, an eight-year-sentence would not be costeffective, while the defendant, advised by his attorney, might conclude that any sentence of five years or more would not minimize his expected punishment. The parties would be unlikely to reach an agreement.

Lawyers who generally adhere to the economic model described above may depart from it sometimes. For example, a prosecutor might fear that the public would disapprove his offer of a light sentence in a publicized case. (The public seems not to understand how, in a regime of odds bargaining, the offer of a seemingly ludicrous sentence can advance its interests.) Or the prosecutor

83. Again, I abstract from the “process costs” of trial. See Albert W. Alschuler, Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System, 50 U. CHI. L. REV. 931, 949-52 (1983).

File: Formatted Macro - Alschuler Created on: 5/16/2013 10:50:00 AM Last Printed: 5/28/2013 10:05:00 AM

Summer 2013 Two Band-Aids 695

might wish to gain trial experience, try a case against a noted defense attorney, or seek fame and political fortune by trying a front-page case. Similarly, a defense attorney might conclude that trying a prominent case will be good advertising.84 Some prosecutors and defense attorneys toss the economic model to the winds. One prosecutor declared, When I sit down with a defense attorney who knows how to be reasonable, we judge the whole man. Neither of us cares what evidence would be admissible and what would not, or which one of us would win at trial. We simply try to do the fair thing with each case.85 Frequent departures from the economic model occur because, as noted above, the personal interests of defense attorneys encourage them to recommend guilty pleas to their clients.86 A prosecutor need not offer a sentence that will overbalance the defendant’s chances of acquittal when the defense attorney does not insist on such an offer and back his demand with a credible threat of trial.

When defense attorneys sell out their clients too cheaply, findings like those reported by David Abrams should come as no surprise.87 As a group, defendants who plead guilty may obtain less favorable outcomes than those who stand trial because many of them are represented by lawyers who do not press hard for the offers that economic theory says prosecutors should make.

Pages:     | 1 |   ...   | 3 | 4 || 6 | 7 |   ...   | 8 |

Similar works:

«                                   ! ∀#  ∃ %      &   ∋(((()((()!∗!)++, &(+!, − ∃    −.∋    /    %. 0       +1 !)+1  −223 (+1∗)(4∗(             5           Common Market Law Review 50: 1643–1684, 2013. © 2013 Kluwer Law International. Printed in the United Kingdom. I TRADE, THEREFORE I AM: LEGAL PERSONHOOD IN THE...»

«A Guide to the Judicial Management of Bankruptcy Mega-Cases Second Edition Laura B. Bartell Professor of Law Wayne State University Law School Detroit, Michigan Based on the first edition by S. Elizabeth Gibson Burton Craige Professor of Law University of North Carolina at Chapel Hill School of Law Chapel Hill, North Carolina Federal Judicial Center This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct education...»

«Estonia Estonie Estland Report Q191 in the name of the Estonian Group by Ott MOORLAT and Urmas KAULER Relationship between trademarks and geographical indications Questions I) Analysis of current legislation and case law 1) Do your country’s laws have enactments or systems dealing specifically with GIs, e.g. a registration system for GIs? If so, what are the criteria of registrability? To which national authority must an application for protection be made? Does the applicant have the right to...»


«Session III. The basic challenges for DIS in bail-in application. Kazakhstani bail-in experience Bakhyt Mazhenova Kazakhstan Deposit Insurance Fund June 25-26, 2014 Warsaw, Poland CONTENTS DI’s main challenges during bail-in resolution Kazakhstani legal framework for bail-in SIFI bail-in experience in Kazakhstan Does bail-in work with medium-sized FI? bail-in 2 DI’s main challenges during bail-in resolution Kazakhstan Deposit Insurance Fund 3 DI’s main challenges during Bailin resolution...»

«Excerpts from tele-conference: “Acceptance” and (Common-Law) “Administrative Remedy” regarding filing a “Petition to Enforce Judgment”: This is our background thinking on the process (Note: the word “notary” as used throughout, may be replaced with “three witnesses” without changing the effect or impact of the process. Also: the same rules apply to Canada, just different technical names, and most importantly, the same rules apply to “Admissions” obtained by Common Law...»

«Downloaded from orbit.dtu.dk on: Oct 17, 2016 The Geography of Emerging Industry: Regional knowledge dynamics in the emerging fuel cell industry Tanner, Anne Nygaard; Andersen, Per Dannemand; Borup, Mads Publication date: Document Version Publisher's PDF, also known as Version of record Link to publication Citation (APA): Tanner, A. N., Andersen, P. D., & Borup, M. (2012). The Geography of Emerging Industry: Regional knowledge dynamics in the emerging fuel cell industry. Department of...»

«}jr~ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF PREVENTION, PESTICIDES AND TOXIC SUBSTANCES Mr. Matthew Granahan Nufann Americas, Inc. 150 Harvester Drive, Suite 200 Burr Ridge, IL 60527 Subject: Assert Herbicide EPA Registration Number 71368-62 Application dated January 14,2010 Dear Mr. Granahan: The labeling referred to above, submitted in connection with registration under the Federal Insecticide, Fungicide, and Rodenticide Act as amended is acceptable,...»

«PLAINTIFF DUE PROCESS RIGHTS IN ASSERTIONS OF PERSONAL JURISDICTION R. D. REES* Personaljurisdiction proceedingsformally focus on the defendant's liberty interest in avoiding the reach of an overextending court. In this Note, R. D. Rees argues that such an approach may fail to provide the plaintiff due process. The laws of various jurisdictionsconvert a single set of underlying facts into distinct causes of action, and the Supreme Court understands these statutory programs to create property...»

«United Nations Convention on the Use of Electronic Communications in International Contracts UNITED NATIONS The United Nations Commission on International Trade Law (UNCITRAL) is a subsidiary body of the General Assembly. It plays an important role in improving the legal framework for international trade by preparing international legislative texts for use by States in modernizing the law of international trade and non-legislative texts for use by commercial parties in negotiating transactions....»

«INDIANA UNIVERSITY SOUTH BEND FACULTY/STAFF PUBLICATIONS LISTS 2003 The following list includes those published items and creative works as submitted by the faculty and staff at IUSB in their Annual Reports for 2003. The list is not intended as a comprehensive list of all works published by IUSB faculty and staff during 2003. Arts Michael Lasater Central Wyoming College Gallery, Riverton, Wyoming, The Human Condition, October • 22-November 23, 2003._ National juried group exhibition._...»

«ETHICS IN LITIGATION AND COURT PROCEEDINGS BY STEVE MARK NSW LEGAL SERVICES COMMISSIONER AUSTRALIAN YOUNG LAWYERS STREAM 36TH AUSTRALIAN LEGAL CONVENTION FRIDAY 18TH SEPTEMBER 2009 In the period June 2007 to July 2008, the OLSC received over 400 complaints about the conduct of legal practitioners in court proceedings. 1 The purpose of this paper is to provide a general discussion and refresher of some of the ethical duties of legal practitioners in litigation and court proceedings. The first...»

<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.