47 Emory L. J. 753 (1998)
Should we Really Ban Plea Bargaining: The Core Concerns of Plea Bargaining Critics

handle is hein.journals/emlj47 and id is 763 raw text is: SHOULD WE REALLY BAN PLEA BARGAINING?: THE
CORE CONCERNS OF PLEA BARGAINING CRITICS
INTRODUCTION
Although the media exalts the jury trial as the culmination of a criminal in-
vestigation, guilty pleas actually account for an overwhelming amount of crimi-
nal convictions in this country. A 1992 survey of the seventy-five most popu-
lous counties found that guilty pleas accounted for ninety-two percent of all
convictions in state courts.1 While guilty pleas should be distinguished from
plea bargaining,2 the extraordinarily high plea rate clearly suggests that plea
bargaining pervades our criminal justice system3 Despite its extensive use,
scholars as well as policymakers still debate the propriety of plea bargaining.4
Scholars have argued for years that the system of plea bargaining is inherently
flawed and unfair to defendants.5 On the other hand, policymakers have at-
tempted to ban plea bargaining in response to the public's loss of faith in a
1 BUREAU OF JUSICE STATISTICS, FELONY DEFENDANTS IN LARGE URBAN CoUms, 1992, 29 (1992)
(for felony defendants over a one yearperiod).
2 The guilty plea is a formal admission in court by a defendant as to his guilt of having committed the
criminal act charged. Not all guilty pleas result firm plea bargains, but plea bargains generally resdt in guilty
pleas. Plea bargains come in a variety of forms but generally involve an exchange ofconcessions firm the state
for the defendant's guilty plea. See infra notes 21-22 and accompanying text. It is important to keep in mind
that banning plea bargaining does not include the elimination of all guilty pleas.
3 See HERBERT S. MILLER Er AL, PLEA BARGAINING IN THE UNITED STATE 17 (1978) (stating that
[p]roject field research... suggests that the vast majority of guilty pleas are arrived at through bargaining).
I  See Frank IL Easterbrook, Plea Bargaining as Compromise, 101 YALE I. 1969 (1992); Stephen L
Schulhofer, Plea Bargaining as Disaster, 101 YALE LI. 1979 (1992); Robert . Scott & William . Stuntz,
Plea Bargaining as Contract, 101 YALE LL 1909 (1992); Robert B. Scott & William L Stuntz, A Reply: Im-
perfect Bargains, Imperfect Trals, and Innocent Defendants, 101 YALE LJ. 2011 (1992) (A Reply').
5 See MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT (1979); Albert W. Alschuler, The
Changing Plea Bargaining Debate, 69 CAL. L REV. 652 (1981); Albert W. Alschuler, The Defense Attor-
ney's Role in Plea Bargaining, 84 YALE L. 1179 (1975); Albert W. Alsacler, Implementing the Criminal
Defendant's Right to Tdal Alternatives to the Plea Bargaining ystem, 50 U. CHL . REV. 931 (1983); Al-
beit W. Alschrler, The Prosecutor's Role in Plea Bargaining, 36 U. CHL L REV. 50 (1968); Albert W.
Alschuler, The Trial Judge's Role in Plea Bargaining, 76 COLUM. L. REV. 1059 (1976); Douglas G. Gifford,
Meaningful Reform of Plea Bargaining: The Control of Prosecutorlal Discretion, 1983 U. ILL L. REV. 37
(1983); Kenneth Kipnis, Plea Bargaining: A Critic's Rejoinder, 13 L. & SOC'Y REV. 555 (1979); John L
Langbein, Torture andPlea Bargaining, 46 U. CHI. L REV. 3 (1978); Stephen L Schulhofer, Criminal Justice
Discretion as a Regulatory System, 171. LEGAL. STUD. 43 (1988); Stephen . Schdhofer, Due Process of Sen-
tencing, 128 U. PA. L. REV. 733 (1980); Stephen L Sculhofer, s Plea Bargaining Inevitable?, 97 HARV. L
REV. 1037 (1984); Sclnlhofer, Plea Bargaining as Disaster, supra note 4.

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