Friday, November 4, 2011

Dervan on Overcriminalization and Plea Bargaining

In my recent article entitled "Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization," which appeared in George Mason's Journal of Law, Economics and Policy, I discuss the manner in which plea bargaining and overcriminalization rely on each other for their very existence.  An abstract for the article is below, and you access a copy of the article by clicking here and downloading it for free.
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.

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