The Surprising Lessons from Plea Bargaining in the Shadow of Terror

60 Pages Posted: 7 Feb 2010 Last revised: 11 Jan 2011

Lucian E. Dervan

Southern Illinois University School of Law

Date Written: February 2, 2010

Abstract

Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining present in the current literature – the administrative theory and the shadow-of-trial theory. The article then offers a new theory of plea bargaining that both expands on these existing theories and combines relevant aspects of each into one overarching model. In doing so, this article provides for a greater understanding of the function of the plea bargaining machine in the criminal justice process, the roles played by its actors, and the factors influencing its operation.

Keywords: Criminal Law, Criminal Procedure, Plea Bargaining, Terrorism

JEL Classification: K10, K14

Suggested Citation

Dervan, Lucian E., The Surprising Lessons from Plea Bargaining in the Shadow of Terror (February 2, 2010). Georgia State University Law Review, Vol. 27, No. 2, p. 239, 2011. Available at SSRN: https://ssrn.com/abstract=1546717

Lucian E. Dervan (Contact Author)

Southern Illinois University School of Law ( email )

Lesar Law Building
Carbondale, IL 62901
United States

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