Over at PrawfsBlawg, Marquette lawprof Michael O’Hear has come up with yet another paradigm shift in criminal law.  He poses the question of whether plea bargaining is just another form of dispute resolution.

Is it useful to think about plea bargaining as a form of alternative dispute resolution, in the same vein as the mediation or arbitration of civil disputes, or do the particular moral or procedural imperatives of criminal justice mean that analogies to private dispute resolution are unhelpful or misleading?

To test the waters, O’Hear partnered up with an ADR prof, Andrea Schneider, to put on interdisciplinary conferences to explore the subject.  Three panels were held on the following topics”

• Bargaining in the Shadow of the Law—The Relationship Between the Structure of the Criminal Law and Negotiated Outcomes;


• Effects of Cognitive Biases on Plea Negotiation;


• Victims, Apology, and Restorative Justice in Criminal Procedure.

Yes, the same sort of panel topics that lawyers in the trenches think about every day.  In fact, a prosecutor, a PD and I were chatting about these exact subjects over a beer just the other day, until we were interrupted by a judge inquiring whether he left his robe on the bar stool.

Given the nature and make-up of the interdisciplinary panels, it should come as no shock to learn that the outcome was that plea bargaining is indeed merely another form of dispute resolution, and that it was “helpful and appropriate” to view plea bargaining in that way.

The conferences naturally resulted in a papers that will appear in Marquette Law Review.  While the complete article is not yet available, the abstract can be found here.  It states:

Although the study of plea bargaining would seem, by its nature, to invite interdisciplinary collaboration between criminal law and dispute resolution scholars, there has been remarkably little cross-fertilization between the fields. In this Essay, we discuss the suitability of conceptualizing plea bargaining as a form of dispute resolution and describe some of the useful things that criminal law scholars might learn from dispute resolution scholars, and vice versa.

While I’m hesitant to prejudge a scholarly work, two things pop out at me immediately.  First, the fact that this began as an interdisciplinary effort suggests that it was a self-fulfilling prophecy.  After all, what were they going to talk about with all those ADR profs if they decided on day 1 that plea bargaining had nothing to do with dispute resolution?

Second, the law review article is expressly directed toward “criminal law and dispute resolution scholars.”  Is there anybody missing from that list.  Oh, say, prosecutors, defense lawyers, judges and defendants?  All the people who are actually involved in the dynamic? 

We know that lawprof O’Hear is a big fan of plea bargaining, not to mention fond of kinder, gentler prosecutors.  Remember, this is the lawprof who wrote the following:

“The trick is to find ways of injecting the values of voice, neutrality, and respect into the plea bargaining process without robbing plea bargaining of its efficiency advantages over the trial process.”

So it should come as no surprise that he has a strong interest in making plea bargaining appear more benign, societally-friendly, than the brutish but necessary beast we know it to be.  I see the panel about victims, but where’s the one about innocent defendants?  Perhaps the good professor has yet to meet any of them?

Plea bargaining is an ugly business.  It’s hardly arms length, because the parties involved rarely, if ever, have equal bargaining power.  In concept ADR is a relatively cooperative effort to resolve disputes.  Ask any defendant if he would rather be engaged in plea bargaining or just go home and call the whole thing off.  It’s a coercive approach, offering the defendant the lesser of two evils.  Either role the dice and possibly go to prison for life, whether your innocent or guilty, or take the 20 year offer and cut your losses, again whether your innocent or guilty.

In a bizarre sense, the idea that plea bargaining reflects some sort of “settlement” is true, but there is no similarity between the dynamics of plea bargaining and any other form of dispute resolution that I can think of.  I have a hard time imagining that they won’t come up with some ridiculous model that would make sense only to someone hellbent on creating one, who doesn’t have to look a client in the eyes and explain why, even though they are innocent, they have to leave their children for the next 20 years.  But I wouldn’t want to prejudge their scholarly work, would I?