Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization

11 Pages Posted: 24 Aug 2011  

Lucian E. Dervan

Southern Illinois University School of Law

Date Written: August 24, 2011

Abstract

In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence.

Keywords: Overcriminalization, Plea Bargaining, Symbiotic Relationship

JEL Classification: K00, K10, K14, K30, K40, K42

Suggested Citation

Dervan, Lucian E., Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization (August 24, 2011). Journal of Law, Economics and Policy, Vol. 7, No. 4, 2011. Available at SSRN: https://ssrn.com/abstract=1916148

Lucian E. Dervan (Contact Author)

Southern Illinois University School of Law ( email )

Lesar Law Building
Carbondale, IL 62901
United States

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