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101 Yale L.J. 1979 (1991-1992)
Plea Bargaining as Disaster

handle is hein.journals/ylr101 and id is 1995 raw text is: Plea Bargaining as Disaster Stephen J. Schulhofert Constitutional and doctrinal objections aside, plea bargaining seriously impairs the public interest in effective punishment of crime and in accurate separation of the guilty from the innocent. Unlike most defenders of American plea bargaining, Dean Robert Scott and Professor William Stuntz acknowledge these dangers.1 They pay close attention to prior research that has identified structural flaws in the bargaining system, and they make imaginative use of economic analysis to extend that work and reinforce its conclusions. But Scott and Stuntz do not take the next logical step and join those who have advocated the abolition of bargaining. Rather, they argue that abolition would make matters worse and that modest reform of the bargaining process can significant- ly reduce its harmful effects. Unfortunately, the Scott and Stuntz proposals only nibble at the edges of the problem. Their suggested reforms would have little impact on the ineffi- ciencies and injustices of the American plea bargaining system. One might still choose to preserve rather than abolish bargaining, however, if Scott and Stuntz are right that abolition would aggravate existing problems. It is this feature of their argument that is most important, most original, and ultimately most disappointing. The Scott and Stuntz analysis does not success- fully establish that abolition of bargaining would disadvantage the innocent. I argue, to the contrary, that abolition would serve both justice and efficiency. Central to my thesis is an understanding of the structural problems that distort the plea bargaining system. Accordingly, Part I of this Comment ex- plains how structural flaws impair both due process and crime control values. I argue that the subtle effects on the innocent that preoccupy Scott and Stuntz scarcely exist, except on paper, and that curing them would not, in any event, enhance the efficiency or fairness of the bargaining system. But I argue that other flaws in the bargaining structure, which Scott and Stuntz do not address, create massive problems of inefficiency and unfairness. Part II of the Comment explains why the ameliorative reforms suggested by Scott and Stuntz are likely to prove ineffective. Part III focuses on the most t Frank and Bernice L Greenberg Professor of Law and Director of the Center for Studies in Criminal Justice at the University of Chicago. I am grateful for the comments of William Landes. 1. Robert E. Scott & William 3. Stuntz, Plea Bargaining as Contract, 101 YALE LJ. 1909 (1992). 1979

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