Friday, July 10, 2015

The Dynamics of the Plea Bargain - New York Law Journal

The New York Law Journal has a piece entitled "The Dynamics of the Plea Bargain" that is well worth a read.  The article is an edited version of a speech delivered by Paul Shechtman, partner at Zuckerman Spaeder, on June 2, 2015 at the State University in Albany to the Research Coordination Network on Understanding Guilty Pleas.  The Research Coordination Network is a group funded by the National Science Foundation with the goal of fostering new research on the process that generates guilty pleas.  I am honored to be a member of this group.

Paul Shechtman's talk begins:
I offer these comments as a lawyer and teacher who has practiced and thought about plea bargaining for more than 30 years. There was a day when I could run a regression analysis but that time is long gone.

I will convey my thoughts about plea bargaining by telling you three stories.

The first story dates to 1970, well before I began practicing law. That year, the U.S. Supreme Court decided Baldwin v. New York. Prior to Baldwin, under Section 40 of the New York Criminal Code, defendants charged with class A misdemeanors in New York City (that is to say, crimes for which the maximum term of imprisonment was one year) were tried either to one or three judges. Class A misdemeanants had no jury trial right. In Baldwin, the Supreme Court declared that Section 40 was unconstitutional: if the authorized sentence of imprisonment was more than six months, a defendant had a constitutional right to a jury trial.

As scholars, you may be asking yourself what happened in New York City after Baldwin? In 1971 the student authors of the Columbia Journal of Law and Social Problems asked themselves that question. To answer it, they compared data from the six months before Baldwin and the six months after Baldwin. Here is what they learned:

In the six months before Baldwin, 27.6 percent of non-dismissed cases were tried to either one judge or three judges, a defendant had his choice. Two to four cases could be tried a day. By comparison, in the six months after Baldwin, the trial rate fell to 16.3 percent, and the vast majority of those trials were still non-jury. Most defendants who went to trial waived their new right to a jury trial. Indeed in the six months after Baldwin only 63 cases (2.5 percent of the non-dismissed cases) were tried to a jury. The average jury trial took between 2 1/2 and 3 days to complete.

What occurred after Baldwin was more plea bargaining. Sentences for those who pleaded guilty were reduced to make pleading guilty more attractive. In the six months prior to Baldwin, 25 percent of sentenced offenders received less than 60 days; in the six months after Baldwin, the number increased to 41 percent. Sentences of more than 60 days were reduced in proportion.

That is my first story, and I will return later to its implications.
The article then continues with additional stories and observations regarding their significance to the plea bargaining issue. The entire article is available here.

To learn more about the Research Coordination Network, including links to various articles and resources regarding plea bargaining, visit the Network's website here.

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