Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining

61 Pages Posted: 22 Nov 2019 Last revised: 5 Dec 2019

See all articles by Andrea Kupfer Schneider

Andrea Kupfer Schneider

Marquette University - Law School

Cynthia Alkon

Texas A&M University School of Law

Date Written: 2019

Abstract

Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.

Suggested Citation

Schneider, Andrea Kupfer and Alkon, Cynthia, Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining (2019). New Criminal Law Review, Vol. 22, Forthcoming; Marquette Law School Legal Studies Paper No. 19-17; Texas A&M University School of Law Legal Studies Research Paper No. 19-65. Available at SSRN: https://ssrn.com/abstract=3491466

Andrea Kupfer Schneider

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States

Cynthia Alkon (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce Street
Fort Worth, TX 76102
United States

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