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Yearbook on Arbitration and Mediation




This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually negotiated in private between the defense and the prosecution and only announced in open court and on the record once the deal is final and agreed to by all the parties. Does this mean the law is absent in the process? And, does plea bargaining work to undermine the formal criminal codes in the United States? The simple answer is that the formal criminal law provides the framework for how plea bargaining works and also acts as a substantial impediment to serious plea bargaining reform, an impediment that is often not recognized as scholars and practitioners focus on the fact that the plea bargaining process itself operates with few rules and constraints.

Much of the most current scholarship on plea bargaining uses recent Supreme Court cases, most notably Lafler v. Cooper and Missouri v. Frye, to recommend further reforms to plea bargaining. However, Padilla, Lafler, and Frye, were all cases in which the Court looked only at the question of whether there was competent assistance of counsel during the client-counseling phase of plea bargaining. The narrow focus of the Court in these cases has meant that many commentators and scholars have been similarly focused on the defense lawyer role in plea bargaining or how to provide better defense services. Some scholars have focused more generally on the need to reform plea bargaining by adopting more procedural rules. The current wave of scholarship often fails to recognize the importance of also reforming the substantive criminal law as a key component to meaningful plea bargaining reform. This is due, in part, to a failure by many critics and commentators to more fully examine bargaining behavior during plea negotiations and to their underlying assumption that plea bargaining is a process that exists outside the law instead of a process that is defined by the existing law.

This article will begin, in Section II, with a brief explanation of the few rules that regulate the plea bargaining process. Section III will examine how plea bargaining works, focusing on how the substantive criminal law impacts bargaining behavior. Section IV will discuss the concern that plea bargaining is often overly coercive and how the substantive criminal law contributes to the coercive atmosphere. Section V will consider the classic article, The Shadow of the Law: The Case of Divorce and examine whether plea bargaining happens in the shadow of the law. This article will use the shadow of the law concept and build off the analysis from previous articles arguing that while plea bargaining is highly complex, it is time to reexamine how the substantive criminal law impacts plea bargaining behavior and the importance of substantive criminal law reform as part of the overall reform of the plea bargaining process. Section VI will propose that plea bargaining reform efforts should include efforts to reform the underlying criminal law using examples from California’s recent changes in the law to explore the kinds off substantive criminal law reform that might contribute to plea bargaining reform.

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West Academic Publishing

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