50 Pages Posted: 10 Aug 2010 Last revised: 31 Jul 2011
Date Written: August 9, 2010
Conventional wisdom holds that all crimes run a gauntlet of procedures that begins with an investigation and arrest, leads to charging and arraignment, and culminates (at least in successful prosecutions) with a conviction and the application of punishment. The reality is more nuanced. As this article's empirical study of the invocation and utilization of specific crimes contained within the United States Code indicates, there exist “detention crimes,” “charging crimes,” and “pleading crimes,” three types of offenses that, as applied, tend to implicate only portions of this sequence.
This article examines the three categories of “facilitating crimes” and the benefits and drawbacks associated with their use. On the one hand, these offenses may reflect the more sensitive criminalization of specific misconduct; on the other, the failure of these crimes to engage the entire procedural continuum may compromise their legitimacy.
The article concludes that while facilitating crimes and the practices that produce these offenses raise significant concerns, a species of pleading crime that categorically could not form the basis for an arrest or an initial charge, but could provide grounds for a negotiated plea bargain, might be considered as a replacement for some conventional crimes.
Keywords: criminal law, criminal procedure, plea bargaining, arrest, charging, prosecutors
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