The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations

73 Pages Posted: 19 Jun 2016 Last revised: 4 May 2017

See all articles by Nancy J. King

Nancy J. King

Vanderbilt University - Law School

Ronald F. Wright

Wake Forest University - School of Law

Date Written: June 15, 2016

Abstract

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony court judges serving as lower court judges, and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research.

Keywords: Plea negotiations, criminal law, felony mediation, managerial judging

Suggested Citation

King, Nancy J. and Wright, Ronald F., The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations (June 15, 2016). Texas Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2796296

Nancy J. King (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
(615) 343-9836 (Phone)
(615) 322-6631 (Fax)

Ronald F. Wright

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5727 (Phone)
336-758-4496 (Fax)

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