I am pleased to join Indisputably as a guest blogger. My particular interests include criminal dispute resolution and rule of law development. I teach dispute resolution courses at the Appalachian School of Law. This year, as I do every year, I ended my Advanced Negotiation class with a three defendant plea bargain role play. It includes elements of the classic prisoner dilemma and issues of power imbalance and larger policy questions regarding the role and job of a prosecutor.
The scenario is a classic drug sales case with one defendant holding the drugs while the evidence against the other two defendants is not as clear-cut. The two less culpable defendants will get a much better deal if they agree to testify against the third defendant. The students representing those defendants tend to negotiate a deal that includes turning on the third defendant. Some students maintain that their clients would never snitch on the third defendant and agree to longer prison terms. A few of the student teams do not come to an agreement.
None of that is a particular surprise.
But, what is surprising is what the student-prosecutors do with their facts. Their role states that their interest is to get as many convictions as possible and serious prison time for the third defendant. The student prosecutors rarely consider that their job is to do justice (despite having assigned reading on that difficult to define topic). The student-prosecutors seem to assume that they will easily win at trial against all three defendants. They get carried away with their power and many revert to hard bargaining tactics including take it or leave it offers (this is after an entire semester discussing and using interest-based bargaining). Generally only a few of the negotiating teams even consider alternative sentences or processes for the less culpable defendants (such as drug court, drug programs or community service).
When we debrief the exercise in class the student-prosecutors usually say that they didn’t consider the alternatives because they wouldn’t gain anything by using them or because they weren’t in the facts so they didn’t think it was an option to consider anything except prison time. I’m considering whether I should add in some specific provisions allowing for alternative sentences next year and see how this changes the negotiations. I welcome any thoughts.
I think it has to do with who gets into law school . These are kids who do what they’re told, do their homework, study hard. If you tell them to come up with an alternative sentence, or a contingent contract, or an elegant mutual gains solution, they can do it. But if you just give them the facts and tell them to make a deal, it’s as if they never heard of any of those things and the class never existed. I tell them that problems in the real world do not come with big labels on them identifying the strategies to be used to solve them and that they have to learn to identify these ideas on the hoof in the wild. They say it’s unfair to judge them on their performance because I didn’t specify what I was looking for.
I would leave out the specific provisions for alternate sentences. Here’s why: As you may recall, I took your course and participated in this exercise (albeit a couple of years ago now). The exercise had an impact on the participants in the sense that the alternative was a revalation. Each student played the role of defense attoreny and prosecutor (if memory serves). The prosecutors reverted to hard bargaining, at lest in part, because the defense attorneys failed to counter with an alternative sentence–they were relying solely on the good graces of the prosecutors. Once it was revealed that they could have asked for an alternative, the defense attorneys felt slighted. In the end, I think the impact of not having that knowledge at the outset was much greater than it would have been had that information been provided.
Even though I teach undergraduates (who are presumably much less sophisticated), I see some of the same problems that you mention. I use scenario-based writing assignments for my Constitutional Law courses, and students rarely consider options that are not explicitly listed in the scenario. They also often deviate from their assigned role to their “true selves.” For example, in a recent assignment, the students were supposed to be deputy public defenders writing a memo to their supervisor. The memo was supposed to recommend proceeding to trial or striking a plea bargain, depending upon the student’s assessment of whether or not the evidence in the scenario was gathered properly or not. Most students, even good ones, started from the premise that the bust was good and that their client should plead guilty and accept the court’s mercy. Even though the course is a political science course about the development of the U.S. constitution, I found myself commenting on their duty, in the scenario, to represent their client. Next time I will include that specific reminder in the scenario. (To be fair, the class split about 2 to 1 against challenging the evidence before the judge.)