Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System
![handle is hein.journals/cathu61 and id is 65 raw text is: COERCIVE PLEA BARGAINING: THE
UNRECOGNIZED SCOURGE OF THE JUSTICE
SYSTEM
H. Mitchell Caldwell+
I. ETHICAL AND PROFESSIONAL DUTIES OF PROSECUTORS ........................ 66
II. PLEA BARGAINING THROUGH THE LENS OF GAME THEORY .................. 67
III. THE PROBLEM OF COERCIVE BARGAINING ........................................... 75
A. Plea Bargaining Is Not the Problem .............................................. 75
B. A Short History of Plea Bargaining ................................................. 78
C. A Paucity of Reliable Data .............................................................. 82
D. Overcharging: The Precursor to Coercive Pleas ........................... 83
V. PREVIOUSLY SUGGESTED SOLUTIONS TO OVERCHARGING ..................... 86
V1. A NEW APPROACH: SYSTEMATIC AUDITS FROM AN OVERSIGHT TEAM .... 89
A . Internal O versight ........................................................................... 89
B. External Oversight .......................................................................... 91
C. A N ew Approach ............................................................................... 92
While walking down their street one evening, Marcus and Alfred, both
eighteen, passed a boy they recognized from school. Marcus approached the
boy, and in a low, menacing voice, he demanded the boy's backpack. After
rummaging through the pack, Marcus pulled out forty dollars, shoved the boy
down, and walked off. Alfred, surprised as he stood by watching, pulled the
boy to his feet and then walked away in the same direction as Marcus.
The police later arrested both Marcus and Alfred, and the prosecutor charged
them with robbery and street terrorism.2 Although Alfred did not actively
participate in this event, the prosecutor charged him under the accomplice
+ Professor, Pepperdine University School of Law. He thanks Pepperdine University School of
Law's Summer Research Grant Fund, and his research assistants: Natalia Bronchuk, Lauren
Wilson Castles, Chalak Richards, and Zach Ulrich, as well as Reference Librarian Jennifer
Allison.
1. CAL. PENAL CODE § 211 (West 2008) (Robbery is the felonious taking of personal
property in the possession of another, from his person or immediate presence, and against his
will, accomplished by means of force or fear.). 41
2. The California Street Terrorism Enforcement and Prevention Act provides, in part, that
[A]ny person who is convicted of a felony committed for the benefit of, at the direction
of, or in association with any criminal street gang, with the specific intent to promote,
further or assist in any criminal conduct by gang members ... shall be punished by
imprisonment ....
CAL. PENAL CODE § 186.22(b)(1) (West Supp. 2011).](ViewImageLocal?handle=hein.journals/cathu61&div=5&collection=&method=preview&ext=.png&size=3)
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Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System
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