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54 Am. J. Comp. L. 717 (2006)
The Entrenched Position of Plea Bargaining in United States Legal Practice

handle is hein.journals/amcomp54 and id is 1627 raw text is: JACQUELINE E. ROSS* The Entrenched Position of Plea Bargaining in United States Legal Practice I. INTRODUCTION Though the right to a jury trial is one of the most fundamental rights of criminal defendants under the United States constitution, jury trials have long been the exception to the way in which most American criminal cases are resolved. In the criminal justice sys- tems of the 50 states, over 95 percent of all criminal cases are dis- posed of without a trial, through the entry of a guilty plea. In the federal system the percentage of bargained-for convictions is even higher.' A number of structural features of the U.S. legal system facili- tate the use of plea bargains as short-cuts to criminal convictions. First and foremost among these is the adversarial nature of the U.S. criminal process, which validates convictions as the outcome of a con- test between parties rather than the search for truth by an actively inquiring (and at least nominally neutral) judiciary. Passive judges have no independent access to information by which to assess the strength of the case against defendants who offer to plead guilty. The fate of criminal prosecutions ultimately rests with the parties them- selves, whose prerogative it remains to exercise their procedural enti- tlements or to bargain them away. Second, the absence of a principle of compulsory prosecution (or principle of legality) gives prosecutors convenient leeway in selecting charges, reducing them, or dismissing some charges altogether in exchange for guilty pleas. Plea bargain- ing helps prosecutors dispose of cases efficiently, maintain control over caseloads, and avoid the risk of acquittal. Third, the inability of crime victims to mount private prosecutions or to compel public pros- ecution reinforces the charging discretion and bargaining power of prosecutors-as does the relatively limited ability of crime victims to influence the terms of plea agreements.2 There is little outside check * Associate Professor, University of Illinois College of Law. 1. US Dep. Justice, Bur. Justice Stat. 2004. Felony sentences in state courts, 2002; Admin. Off. US Courts. 2004. Statistical tables for the federal judiciary, June 30, 2004. 2. It is worth noting, however, that at least seven states now have statutes which permit victims to participate in plea negotiations. Sara N. Welling, Victim Par- ticipation in Plea Bargaining, 65 Wash. U. L. Q. 301(1987). And a Kentucky appel- 717

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