The title of this post is the title of this new article now available via SSRN authored by Thea Johnson. Here is its abstract:
Several studies indicate that the public disapproves of plea bargaining, the most common method of resolving cases in the criminal system. However, such studies assume a common understanding of plea bargaining with no basis for this assumption. Although there are a few basic constitutional requirements for a plea bargain, what it is, why it is used, and how plea bargains are performed remains a matter of some debate. Scholars, for instance, paint a particularly dark picture of plea bargaining, where, among other flaws, the innocent are regularly coerced into pleading. This view of plea bargaining is quite different from the version portrayed on TV, where the guilty are punished, the innocent spared, and plea bargains provide only as much benefit to a defendant as a reasonable society can tolerate. Given these disparate views, this essay asks: what does the public understand a plea bargain to be?
In (partial) response to this question, this essay does three things. First, it examines the gulf between "insider" narratives, among practitioners and scholars, and "outsider" narratives, such as portrayals of plea bargaining on fictionalized legal dramas, about how and why plea bargaining happens. Second, it asks: What narrative, if any, does the public believe about plea bargaining? It reviews the scholarship in the field of public perceptions of plea bargaining and finds that although the literature provides some evidence that the public disapproves of plea bargaining, the average person’s understanding of the plea bargain is essentially unknown. In response to this lack of research, this essay lays out the findings of a study, conducted by the author, about perceptions of plea bargaining among a group of law students and finds that this population adopts pieces from each narrative in their understanding of plea bargaining. Third, this essay concludes with an explanation of why it is critical to study the public’s understanding of plea bargaining and proposes some areas of future study. Given that the criminal justice system touches the lives of so many people in the country and that plea bargaining is the primary means of resolving cases in the criminal system, the public’s conception about this secretive practice has meaningful implications for the legitimacy of the system itself.
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