Crimes, Widgets, and Plea Bargaining: An Analysis of Charge Content, Pleas, and Trials,
100 Cal. L. Rev. 1573
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol100/iss6/2
This Article considers how the composition and gravamen of a charged crime can affect the willingness and ability of the prosecution and defense to engage in plea bargaining. Most of the prevailing descriptions of plea bargaining ignore or discount the importance of charge content in plea negotiations; in fact, one leading commentator has likened crimes to widgets insofar as plea bargaining is concerned. In developing its counterthesis, this Article reviews seven years (FY2003-FY2009) of federal conviction data, focusing on those crimes that produce the most, and fewest, trials, relative to how often they are alleged; the most, and fewest, acquittals at trial; and the most, and fewest, plea bargains that involve a substantial alteration in charges. Overall, the data demonstrate that the character of, and circumstances that surround, a particular offense can catalyze or frustrate plea bargaining. Similar information to that gleaned from this study can and should be considered in connection with the adoption of new crimes and the reevaluation of existing offenses. This information would provide legislatures with insight into how a proposed crime is likely to be utilized and how current crimes are being used in plea bargaining.