Tuesday, May 27, 2008

The Plea Bargaining Process

The plea bargaining process is done away from the public eye. Some empirical studies have been done, but most of them are a couple of decades old. Dierdre M. Bowen (Seattle University School of Law) spent several months in 2000 observing and interviewing prosecutors and defense attorneys as they worked out (or didn't work out) pleas. The group she studied? The cases that went through the Early Plea Unit of the King County Prosecutor's Office. (I don't know whether the structures have changed since 2000.)

Prof. Bowen has posted on SSRN an article that will be in Justice Journal next year: Calling Your Bluff: How Prosecutors and Defense Attorneys Adapt Plea Bargaining Strategies to Increased Formalization, available at SSRN: http://ssrn.com/abstract=1128409 (posted May 5, 2008). She reports her observations, compares the system with some published recommendations for plea bargaining, and concludes with recommendations of her own. Here's the abstract:

This ethnographic work examines the inner workings of a highly formalized plea bargaining unit in a large urban prosecutor's office from the lawyers' point of view. Observations of forty two plea negotiations between prosecutors and defense attorneys along with both formal and informal interviews reveal how the legal actors adapt to institutional rules in the pursuit of the both efficiency and justice. In the face of ever increasing prosecutorial power, defense attorneys find ways to equalize the balance when cases don't fit the 'normal crimes' model. Examination of negotiating strategy and discourse give further insight into whether prosecutors and defense attorneys behave differently under highly rationalized systems of plea-bargaining compared with traditional models previously studied.


Anonymous said...

Are "pleas" considered to be a contract between the State/Prosecutor and the defendant?

Mary Whisner said...

Dear Anonymous,

If you are interested in Washington State law, try going to http://legalwa.org and searching the case database.

When I put in PLEA BARGAIN CONTRACT, I found dozens of cases discussing plea bargains as contracts. E.g.:

¶16 We view a plea bargain as a contract. State v. Sledge , 133 Wn.2d 828 , 838, 947 P.2d 1199 (1997). As such, once a defendant enters a plea in reliance on the agreement, the State cannot revoke the plea bargain. Wheeler , 95 Wn.2d at 803 . If the State revokes the bargain after the defendant has entered the plea, specific performance may be ordered. State v. Schaupp , 111 Wn.2d 34 , 41, 757 P.2d 970 (1988). However, there is no such requirement if the State revokes a plea offer, and, in the case at bar, there is no evidence that a plea bargain, as opposed to an offer, existed.

State v. Budge, 125 Wn. App. 341 (Div. II 2005)

-- Mary

Anonymous said...

Ok. So, how about plea deals made for a guilty plea where you lose your right to an appeal? More specifically, when your sentence runs it's course, but the State makes new laws that effect you in a way as to break your plea deal "ex post facto"???

Anonymous said...

"The difference between a plea proposal and a plea bargain is that in a plea bargain, the defendant has taken some action, such as pleading guilty to a lesser charge."

What if a person pleas guilty not to a lesser charge, but a less than maximum sentence? Does that still imply an "action"???

Mary Whisner said...


You might want to go to a law library to research your questions further. If you're in the Seattle area, you can come to the University of Washington. If you're elsewhere, see the list here: http://lib.law.washington.edu/ref/lawlibraries.html

-- Mary