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.