What's the Matter with Kansas — And Utah?: Explaining Judicial Interventions in Plea Bargaining

18 Pages Posted: 21 Feb 2017

See all articles by Darryl K. Brown

Darryl K. Brown

University of Virginia School of Law

Date Written: February 21, 2017


This short piece suggests explanations for an apparent increase in a certain kind of “managerial judging” among state criminal court judges. In a recent study of ten states that authorize their trial court judges to play a role in the plea bargaining process, Nancy King and Ronald Wright found evidence that judges in eight states have indeed have become more involved in facilitating negotiated pleas. I suggest that an important likely reason for this development is that the eight states with active judges all have broad regimes of pretrial discovery. The two states in which judges have not moved into more active role — Kansas and Utah — are the two jurisdictions with much more limited pretrial discovery rules. Broad discovery was a key explanation the “managerial judging” that Resnik described in her classic account of federal civil litigation. Discovery — rather than simply rules authorizing a judicial role in the plea process — seems likely, for various reasons, to be an important factor in the somewhat analogous development of the judicial role in state criminal courts. I also consider the possible effects of other factors that make Kansas and Utah distinctive — they are the most rural states in the King-Wright study, and they have consistently had the lowest state incarceration rates.

Keywords: plea bargaining, managerial judging, adjudication, criminal procedure, discovery

Suggested Citation

Brown, Darryl K., What's the Matter with Kansas — And Utah?: Explaining Judicial Interventions in Plea Bargaining (February 21, 2017). Forthcoming in Texas Law Review See Also, vol. 95 (February 2017), Virginia Public Law and Legal Theory Research Paper No. 2017-09, Available at SSRN: https://ssrn.com/abstract=2921271

Darryl K. Brown (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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