Plea Bargaining and the Trial Penalty

Today’s report from Human Rights Watch and the ensuing uproar over prosecutor behavior is just the latest attack on a negotiation system that is fundamentally flawed.  Human Rights Watch report here and New York Times coverage here 

When I studied how lawyers in general negotiate and then assessed the behavior in criminal cases (Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea Bargaining Negotiations?), it was remarkable to me that prosecutors and defense attorneys seemed to describe almost a fantasy system where more than 85% of negotiation interactions were described as problem-solving.  And, as I explained at the time, repeat play and large case loads do have a significant impact on the relationships between counsel.  But the threat of the trial penalty perhaps created a system in which defense attorneys have no choice but to “get along” with prosecutors and, given their power, prosecutors can choose to appear as problem-solving as they like.  It appears that in the last ten years, this situation has only become worse. 

The Human Rights Watch study shows both the harshness of the trial penalty and the capriciousness of its use by prosecutors.  If this is the shadow of the law in which defendents are bargaining, it is a very dark one indeed.