Beyond Plea Bargaining: A Theory of Criminal Settlement

70 Pages Posted: 13 May 2020 Last revised: 9 Jun 2021

See all articles by Richard Lorren Jolly

Richard Lorren Jolly

Southwestern Law School

J.J. Prescott

University of Michigan Law School

Date Written: May 1, 2021

Abstract

Settlement is a term rarely used in criminal law. Instead, people speak almost exclusively of plea bargaining—i.e., enforceable agreements in which a defendant promises to plead guilty in exchange for a prosecutor’s promise to seek leniency in charging or at sentencing. But a traditional plea agreement is just the most visible instance of a much broader class of possible criminal settlement agreements. In terms of their fundamentals, criminal set- tlements are indistinguishable from their civil counterparts: through either an atomized or comprehensive bargain, parties exchange what they have for what they want, advancing their respective interests in cost minimization, risk miti- gation, and value maximization. Focusing only on a defendant’s promise to plead guilty discounts the diversity and complexity of the agreements into which defendants and prosecutors may and regularly do enter. This Article ad- vances a comprehensive framework of criminal settlement—one that leverag- es incomplete or partial settlements as an analytical frame that stretches be- yond mere plea bargaining. As in the civil context, criminal settlements need not resolve disputes outright but may instead limit or redefine a dispute in a way that the parties find mutually beneficial. A crucial difference in the crimi- nal context, however, is that these bargains necessarily take place in the shad- ow of judicial discretion that regulates access to the state’s power to punish. Consequently, prosecutors and defendants may agree to reshape procedures, issues, and potential outcomes in order to constrain or influence judicial deci- sion-making in ways that are congruent with their respective interests. But judges are not passive in this landscape. They, too, may act strategically to prompt the bargains we ultimately observe. By modeling this interplay be- tween parties and judges, this Article fashions a more complete picture of the motivations, consequences, and policy implications of criminal settlement.

Keywords: criminal settlement, plea bargaining, alternative dispute resolution, charge bargaining, fact bargaining, settlement

Suggested Citation

Jolly, Richard Lorren and Prescott, J.J., Beyond Plea Bargaining: A Theory of Criminal Settlement (May 1, 2021). Boston College Law Review, Vol. 62, No. 4, pp.1047-116 (April 2021), U of Michigan Law & Econ Research Paper No. 20-026, Available at SSRN: https://ssrn.com/abstract=3579226

Richard Lorren Jolly (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, 90010
United States

J.J. Prescott

University of Michigan Law School ( email )

3170 South Hall
701 S. State St.
Ann Arbor, MI 48109
United States
734-763-2326 (Phone)

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