THE VALUE OF PLEA BARGAINING - University of Oklahoma.pdfVIP

THE VALUE OF PLEA BARGAINING SCOTT W. HOWE * I. Introduction Plea bargaining has many critics.1 The public tends to believe that bargaining treats defendants too leniently.2 Academic commentators typically contend that bargaining treats defendants too cavalierly or too harshly.3 * Associate Dean for Academic Affairs and Frank L. Williams, Jr. Professor of Criminal Law, Chapman University School of Law. A.B. 1977, University of Missouri; J.D. 1981, University of Michigan. XXxI thank Daniel Bogart, Katherine Darmer, Michael Lang, and Peter van Zante for provocative discussions and helpful comments and Jetty Maria Howe for assistance and encouragement at all stages of the project. Of course, they do not necessarily agree with all of the views expressed in this article. XXxI have benefitted in the preparation of this article from a research grant provided by Chapman University School of Law. 1. As used in this article, “plea bargaining” means the creation by the prosecutor or judge, whether explicitly or implicitly, of an expectation of leniency that is subsequently honored in exchange for the entry of a guilty plea. “So long as defendants routinely expect to receive some form of sentencing consideration in exchange for an admission of guilt, the essence of a system of bargain justice is present.” Thomas W. Church, Jr., In Defense of “Bargain Justice, ” 13 LAW SOC ’Y REV. 509, 512 (1979). 2. See, e.g., Stanley A. Cohen Anthony N. Doob, Public Att itudes to Plea Bargaining, 32 CRIM . L.Q. 85, 97 (1989-1990) (study finding that large majority of Canadians opposes plea bargaining because it treats defendants too leniently). XXxAcademic commentators have also asserted this c