Alkon Transparency

Legal Studies
Research Paper Series

Research Paper No. 19–65
Bargaining in the Dark: The Need for

Transparency and Data in Plea
Bargaining
Andrew Kupfer Schneider

Cynthia Alkon
This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection
Electronic copy available at: https://ssrn.com/abstract=3491466

BARGAINING IN THE DARK: THE NEED FOR
TRANSPARENCY AND DATA
IN PLEA BARGAINING
Andrea Kupfer Schneider* and Cynthia Alkon**
forthcoming in 22 NEW CRIM. L. REV. 434 (2019).
Plea bargaining is the primary, and unavoidable, method for resolving the vast
majority of criminal cases in the United States. As more attention is paid to
reform and changes in the criminal legal system, plea bargaining has also come
into the spotlight. Yet we actually know very little about what happens during
that process—a potentially complex negotiation with multiple parties that can,
at different times, include prosecutors, defense counsel, judges, defendants, and
victims. Using negotiation theory as a framework, we analyze why more
information about the process itself can improve this crucial component of the
system. More information—more data—would permit informed judicial
oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients
and the state, and increase the legitimacy of the bargaining between parties
where one side tends to have far more resources and power. Without increased
*Professor of Law and Director, Dispute Resolution Program, Marquette University,

School of Law.
We want to thank the organizers of this wonderful symposium, Tali Gal and Hadar
Dancig-Rosenberg, for hosting us and sparking these terrific conversations about the crim-
inal legal system. To all of the participants at the conference, and in particular, our com-
menter Doron Teichman, we appreciated the very helpful comments. Thank you to the
Park City Writers Workshop participants and to the South Eastern Association of Law
Schools 2019 Criminal Law Discussion Group. Thank you also to Noam Ebner, Art
Hinshaw, Vida Johnson, Michael Moffitt, Michael O’Hear, Jenia Iontcheva Turner, Nancy
Welsh, and Ron Wright for their excellent suggestions for this article. And Andrea thanks
her research assistants, Margaret Spring and Morgan Henson, for their work on this.
**Professor of Law and Director, Criminal Law, Justice, and Policy Program, Texas
A&M University, School of Law.

BARGAINING IN THE DARK | 2
transparency, many of the players in the criminal legal system are just bar-
gaining in the dark.
INTRODUCTION
Plea bargaining in the United States has become the primary way for
criminal cases to be resolved in all state and federal jurisdictions.1 Whereas
early critics called for the abolition of or limits on plea bargaining, most
now recognize that plea bargaining is an unavoidable part of the criminal
legal system.2 And, as reformers have looked to ameliorate the worst in-
justices of the criminal legal system, there has been renewed focus on plea
bargaining.3 Yet the study of plea bargaining has mostly focused on the
results—the actual plea—rather than the process. In part, this focus is
understandable given that the outcome is the measure by which each player
in the criminal legal system—the defendant and his lawyer, the prosecutor
and the victim, and the judge—measures success. But this focus is only part
of the story of what happens during the plea bargaining process. That
process itself is a negotiation—among multiple parties, under time con-
straints, perhaps with outside political or public pressure, and with signif-
icant power imbalances. In short, this negotiation can be complex and
1. “ ... criminal justice today is for the most part a system of pleas, not a system of trials.”
Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012).
2. For examples of reform recommendations, other than banning plea bargaining, see
Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer
Protection, 99 C AL. L. R EV . 1117 (2011); Michael O’Hear, Plea Bargaining and Procedural
Justice, 42 GA. L. R EV. 407 (2008); Ronald F. Wright & Marc Miller, The Screening/
Bargaining Tradeoff, 55 STAN. L. R EV. 29 (2002); Cynthia Alkon, An Overlooked Key to
Reversing Mass Incarceration: Reforming the Law to Reduce Prosecutorial Power in Plea Bar-
gaining, 15 MD. L.J. OF R ACE, R ELIGION , GENDER & CLASS 191 (2015); Cynthia Alkon,
Hard Bargaining in Plea Bargaining: When do Prosecutors Cross the Line? 17 NEV . L.J. 401
(2017); Nancy J. King & Ronald F. Wright, The Invisible Revolution in Plea Bargaining:
Managerial Judging and Judicial Participation in Negotiations, 95 TEX. L. R EV . 325 (2016).
3. See, e.g., Bibas, supra note 2; Russell D. Covey, Fixed Justice: Reforming Plea Bargaining
with Plea-Based Ceiling, 82 TUL. L. R EV . 1237 (2008); Jenia Iontcheva Turner, Effective
Remedies for Ineffective Assistance, 48 W AKE FOREST L. R EV . 949 (Fall 2013); Jenny Roberts
& Ronald F. Wright, Training for Bargaining, 57 W M .& M ARY L. R EV. 1445 (2016); Ronald
F. Wright & Rodney L. Engen, The Effects of Depth and Distance in A Criminal Code on
Charging, Sentencing, and Prosecutor Power, 84 N.C. L. R EV. 1935 (2006).

3 | BARGAINING IN THE DARK
challenging, necessitating (or requiring) the best of negotiation theory to

analyze it. For some time, negotiation scholars and criminal law scholars
have worked in individual silos without cross-fertilizing to consider how
negotiation theory might shed light on the process of plea bargaining and
how the parameters and law of the criminal legal system might modify or
illuminate negotiation theory and practice. This is slowly changing, to the
benefit of all involved.4
In this article, we apply negotiation theory and analysis in two ways.
First, we examine the processes by which we generally attempt to make
negotiation just (or at least not egregiously unfair), and second, we suggest
where more information about the processes and outcomes of plea bargains
would be helpful to make the criminal legal system more just, or at least not
so unjust. We argue that information, or lack thereof, is a significant
limitation in ensuring the legitimacy of plea bargaining and the entire
criminal legal system. In this article, we discuss several different types of
information: that which is known by one side or the other, but not both,
and information that is not known by either side. We are also talking about
information that helps an individual lawyer in an individual case to assess
the quality of the deal, and information that helps lawyers to improve their
4. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. R EV.
2463 (2004); Roberts & Wright, supra note 3; Rebecca Hollander-Blumoff, Getting To
“ Guilty”: Plea Bargaining as Negotiation, 2 HARV. N EGOTIATION L. R EV. 115 (1997);
Richard Birke, Reconciling Loss Aversion and Guilty Pleas, UTAH L. R EV. 205 (1999);
CYNTHIA A LKON & A NDREA KUPFER SCHNEIDER , N EGOTIATING CRIME: PLEA BARGAIN- ING,
PROBLEM SOLVING, AND DISPUTE R ESOLUTION IN THE CRIMINAL CONTEXT (2019); Alkon,
Hard Bargaining, supra note 2; Cynthia Alkon, Plea Bargain Negotiations: Defining
Competence Beyond Lafler and Frye, 53 A MERICAN CRIMINAL L AW REVIEW, 377 (Spring
2016); Alkon, Overlooked Key, supra note 2; Cynthia Alkon, What’s Law Got to Do With It?
Plea Bargaining Reform after Lafler and Frye, 7 Y.B. ON A RB . & M EDIATION, 1 (2015);
Cynthia Alkon, The Right to Defense Discovery in Plea Bargaining Fifty Years after Brady v.
Maryland, 38 N YU R EV. L . & SOC. CHANGE 407 (2014); Cynthia Alkon, The U.S.
Supreme Court’s Failure to Fix Plea Bargaining: The Impact of Lafler and Frye, 41 HAST-
INGS C ONST . L.Q. 561 (2014); O’Hear, supra note 2; Michael O’Hear & Andrea Kupfer
Schneider, Dispute Resolution in Criminal Law, 91 M ARQ. L. R EV . 1 (2007); Andrea Kupfer
Schneider, Cooperating or Caving In: Are Defense Attorneys Shrewd or Exploited in Plea
Bargaining Negotiations? 91 MARQ . L. R EV. 145 (2007); Alafair Burke, Prosecutorial Passion,
Cognitive Bias, and Plea Bargaining, 91 M ARQ. L. R EV . 183 (2007); Russell Covey,
Reconsidering the Relationship between Cognitive Psychology and Plea Bargaining, 91 M ARQ .
L. REV. 213 (2007); Chad Oldfather, Heuristics, Biases, and Criminal Defendants, 91
MARQ. L. REV. 249 (2007).

negotiation skills. Finally, we are also talking about information that will
help us to understand what kinds reforms we should be making—what
new laws or policies do we need to make the system better?
Bargaining in the shadow of the law5 has become perhaps the most
ubiquitous understanding of how civil negotiation occurs. Mnookin and
Kornhauser originally used this phrase to describe how negotiations
between divorcing spouses were impacted by the shifting family law in
California.6 This concept—that negotiations will be impacted by the par-
ties’ legal endowments—has now been applied across fields, and their
article has become one of the most cited articles in negotiation theory of
all time.7 The theory is simple: the existing case and statutory law casts a
shadow over the negotiation, informing the parties of their rights and
influencing the parameters of the settlement. This assumes, of course, that
the parties and their lawyers are informed about the likely outcome of the
case at trial and can then make calculations on that basis. Bargaining in the
shadow of the law also assumes that parties can make informed decisions,
that some minimal protections exist to keep this bargaining just, and that
lawyers can help their clients navigate more complicated negotiations to
bargain effectively.
5. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The
Case of Divorce, 88 YALE L.J. 950 (1979) (“Although there are few criminal trials, one
continuing area of inquiry is whether plea bargaining occurs in the shadow of trial—
whether plea deals are negotiated based on expected trial outcomes. The data surrounding
the trial penalty, or trial tax, suggests that discounts are given based on the defendant
pleading guilty. The Shadow of Trial Theory was originally developed to examine family
(divorce) cases and settlements.”) Id. But see Brian D. Johnson, Ryan D. King, & Cassia
Spohn, Sociolegal Approaches to the Study of Guilty Pleas and Prosecution, 12 A NNUAL R EV . L.
SOC. SCI . 479, 484 (2016) (The shadow of the trial theory may not apply as smoothly to plea
bargaining, as “[p]rosecutors do not necessarily try to maximize total prison time in the
same way that civil litigants try to maximize dollars; they lack the time to take every
winnable case to trial, and sometimes the law mandates more punishment than the pros-
ecutor desires”). And see Shawn D. Bushway et al., An Explicit Test of Plea Bargaining in the
“ Shadow of Trial,” 52 CRIMINOLOGY 723 (2014) (Empirical studies have ranged from
looking at available data sets to survey data and have both found support for the shadow
model and questioned it. One of the studies in favor confirmed that prosecutors and defense
lawyers (although not judges) make decisions on cases based on the shadow of trial. (id.)).
6. Mnookin & Kornhauser, supra note 5.
7. For two examples of applying Bargaining in the Shadow of the Law in the plea bar-
gaining context, see Bibas, supra note 4; and Alkon, What’s Law Got to Do With It?, supra
note 4.

What happens when lawyers lack information? Their ability to bargain

wisely and effectively is constrained. This happens far too often in plea
bargaining. Instead of bargaining in the shadow of the law, both prosecu-
tors and defense attorneys are often bargaining in the dark, ill-informed of
similar cases except for the narrow window of their practice or jurisdiction,
with little ability even to research and find out what else is happening
during the plea bargaining process.
This lack of information, in fact, impacts all parties in the plea bargain-
ing process, from the prosecutors and defense attorneys to judges and even
juries when the few cases do proceed to trial. Defense attorneys may or may
not know what the standard deal is for that prosecutor in that courthouse.8
Prosecutors do not know how other offices in the same state, or perhaps
even different courthouses in the same county, handle cases. Judges do not
necessarily know how other judges in the same courthouse, country, or
state sentence similarly situated defendants. And juries, particularly those
who sentence after conviction, do not know standard sentences.9 This
article will first discuss the push for criminal legal reform and how plea
8. A large county like Los Angeles County has over twenty courthouses, and the
“standard deal” can be fundamentally different, despite having the same prosecutor (the Los
Angeles County District Attorney) in each court. Defense lawyers regularly expect different
deals and do not use the experience in one court to encourage better deals in another. For
example, one L.A. County court was so notoriously tough on defendants that it was called
“No-walk” (instead of Norwalk), compared to the Compton court which had the reputation
(in the 1990s) of treating defendants more reasonably. But, even though this was known, it
was not used as a point of negotiation to encourage Norwalk prosecutors to offer deals more
in line with what could be expected in Compton.
9. Six states allow jury sentencing. Nancy J. King & Rosevelt L. Noble, Felony Jury
Sentencing in Practice: A Three State Study, 57 VAND. L. R EV . 885, 886 (2004) However,
jurors are not provided with information about what is a “standard” sentence, and in states
with sentencing guidelines, the jury may not even be provided with the guidelines (Douglas
A. Berman, Should sentencing juries receive a state’s sentencing guidelines?, https://
sentencing.typepad.com/sentencing_law_and_policy/2012/09/should-sentencing-juries-
receive-a-states-sentencing-guidelines.html/ (Sept. 19, 2012, 08:35 EST). In Texas, a person
convicted of murder could be sentenced to 5–99 years (Texas Penal Code §12.32). Jurors do
not know how long the average murder sentence is when deciding the sentence. One study
found that jurors sentenced defendants to more time than they were sentenced to after a
bench trial or a plea; see Nancy J. King & Rosevelt L. Noble, Felony Jury Sentencing in
Practice: A Three-State Study, 57 V AND. L. R EV. 885 (2004); and Nancy J. King, How
Different is Death? Jury Sentencing in Non-Capital Cases, 2 OHIO ST. J. C RIM. L. 195 (2004)
(Because jury sentencing is unpredictable, defense attorneys “often warn their clients about
the stakes of taking a jury trial because of the sentencing disparity.”).

bargaining fits within that. We then turn to data about plea bargaining—
what we have and don’t have—and examine how this data matters. Using
negotiation theory, we assess typical methods used to manage justice in
negotiation, we review how negotiation theory sheds light on lawyer behav-
ior in negotiation, and finally demonstrate how information is crucial in
negotiation strategies and for avoiding mistakes. We conclude by noting
barriers to data collection and how these might be overcome.
I. PL EA B A R G A I N I N G IN THE CR I M I N AL LEG AL SY S T EM
There is a renewed interest in examining the criminal legal system as the

United States has recognized the costs—financial, social, and in perceived
legitimacy—of the current system.
The United States currently incarcerates 2.3 million people, the highest
number of people of any nation in the world.10 Our overall incarceration
rate is also the highest in the world at 655 people per 100,000.11 A total of
6.7 million adults in the United States, one out of every 37, are under some
form of correctional supervision, either probation, parole, or in custody.12
And African American and Latino communities are harder hit by mass
incarceration.13 Yet, the United States has not always had such high incar-
ceration rates. Mass incarceration started in the 1970s with prison rates
growing, on average, 12 percent per year—raising 400 percent to bring our
numbers to where they are today.14
Plea bargaining contributed to increased incarceration as it made mass
processing of cases easier than it would have been if every conviction relied
on a jury trial.15 State legislatures and the U.S. Congress amended penal
10. ALKO N & SCH NEI DER , supra note 4, at 2–3.

11. Id. at 2.
12. Danielle Kaeble & Lauren Glaze, Correctional Populations in the United States, 2015,
U.S. Department of Justice, Bureau of Justice Statistics.
13. See, e.g., E. ANN CARSON, PRISONERS IN 2016, U.S. Dept. of Justice, Office of Justice
Programs, Bureaus of Justice statistics (Jan. 2018), https://www.bjs.gov/content/pub/pdf/
p16.pdf: see also NAACP, CRIMINAL J USTICE FACT SHEET, https://www.naacp.org/criminal-
justice-fact-sheet/.
14. Jacob Kang-Brown et al., THE NEW D YNAMICS OF M ASS INCARCERATION 8, Vera
Institute (June 2018).
15. John H. Langbein, Torture and Plea Bargaining, 46 U. CH I . L. REV . 8, 12–15, 17–18
(1978) (“Our formal law of trial envisages a division of responsibility. We expect the

codes to increase potential sentences, add enhancements, and expand the

definitions of what is a crime, including allowing more offenses to be
charged as either misdemeanors or felonies.16 The impact of these changes
was to contribute to the coercive atmosphere of plea bargaining by increas-
ing prosecutorial power and to heighten the sense by many criminal
defendants that they have no choice but to accept the plea bargain.17
Defendants who proceed to trial may receive sentences of up to four times
higher than the plea bargain they were offered, a phenomenon known as
the trial penalty.18
These changes that increased prosecutorial power put more pressure on
all defendants to accept plea deals, including those who are innocent.19
Prosecutors have wide discretion in charging decisions and in the plea
offers. Prosecutors can decide to charge a felony instead of a misdemeanor,
prosecutor to make the charging decision, the judge and especially the jury to adjudicate,
and the judge to set the sentence. Plea bargaining merges these accusatory, determinative,
and sanctional phases of the procedure in the hands of the prosecutor .. . The modern
public prosecutor commands the vast resources of the state for gathering and generating
accusing evidence. We allowed him this power in large part because the criminal trial
interposed the safeguard of adjudication against the danger that he might bring those
resources to bear against an innocent citizen-whether on account of honest error, arbitrar-
iness, or worse. But the plea bargaining system has largely dissolved that safeguard.”).
16. Alkon, Overlooked Key, supra note 2, at 196.
17. See, e.g., National Association of Criminal Defense Lawyers, The Trial Penalty: The
Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 17–18 (2018),
available at https://www.nacdl.org/trialpenaltyreport/ (“because plea negotiations are off the
record and because most cases plead out, data regarding plea offers is largely unavailable, so
there is no way to accurately calculate the full extent of the trial penalty ... a combination of
anecdotal evidence and an analysis of prosecutorial practices, sentencing laws, and judicial
decisions, strongly suggests that coercion plays a major role in the ever-increasing percentage
of defendants who forego their right to a trial. (id. at 16)). For a general discussion of
coercion in plea bargaining, see Alkon, Hard Bargaining, supra note 2, at 413–15. See also
ALK O N & SCHN EI DER , supra note 4, at 129–33.
18. Nancy J. King et al., When Process Affects Punishment: Differences in Sentences
After Guilty Plea, Bench Trial, and Jury Trial in Five Guidelines States, 105 COLUM . L.
R EV . 959, 992 (2005); see also National Association of Criminal Defense Lawyers, supra
note 17.
19. See, e.g., Jed S. Rakoff, Why Innocent People Plead Guilty, NY R EV. BOOKS, Nov. 20,
2014; Alkon, The U.S. Supreme Court’s Failure, supra note 4, at 601–3; Oren Gazal-Ayal &
Avishalom Tor, The Innocence Effect, 62 DUKE L.J. 339 (2012); A LKON & SCHNEIDER , supra
note 4, at 135–43.

for largely the same act, such as a theft or battery.20 Prosecutors can decide to
add an enhancement, such as the use of a gun or a prior conviction, which
can dramatically increase the potential maximum sentence.21 Threatening a
harsher penalty, including the death penalty,22 if a defendant rejects a plea
deal is legal and within a prosecutor’s discretionary power.23 The harsh
potential sentences, combined with a plea deal for substantially less time,
can be a powerful form of coercion for any defendant, including innocent
defendants. And, innocent defendants may be more likely to accept plea
deals when faced with potentially long sentences.24 For these reasons, many
of plea bargaining’s critics focus on this aspect: that the overly coercive nature
of plea bargaining forces innocent defendants to plead guilty.25
The Supreme Court has recently recognized that plea bargaining is a crit-
ical part of the justice machinery.26 It has also started to pay attention to the
role of lawyers in plea bargaining and to the fact that this is a negotiation.27
Yet requiring some sort of transparency in this process has not yet become
a priority for either the Court or reformers. We hope to change that. Closer
examination of plea bargaining can put attention on five different and inter-
connected elements: the underlying law, the trial penalty, the power imbal-
ance between prosecutors and defense counsel, lawyer misbehavior, and
lawyer ineffectiveness in negotiation. First, as mentioned above, the under-
lying laws in the United States have been amended over the last few decades
to allow for much harsher sentences. These changes in the law have given
prosecutors even more power as they can decide what charges and enhance-
ments to file, and what plea offers to make. Jurisdictions adopted mandatory
minimums and sentencing guidelines that have given less discretion to
20. See discussion in Alkon, Overlooked Key, supra note 2, at 202–4.

21. For a discussion of the Marissa Alexander case, an example of a case where the en-
hancements added significant pressure and potential time in plea negotiations, see Alkon,
What’s Law Got to Do With It?, supra note 4, at 17–18.
22. Brady v. United States, 397 U.S. 742 (1970).
23. For a discussion of prosecutor’s discretionary power in the context of plea bargaining,
see ALKO N & SCH NEI DER , supra note 4, at 31–53.
24. Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An
Innovative Empirical Study of Plea Bargaining’s Innocence Problem, 103 J. CRIM . L . &
CR I M I NO LO G Y 1, 3–4 (2013).
25. See, e.g., Josh Bowers, Punishing the Innocent, 156 U. PENN L. R EV. (2008).
26. Class v. United States, 583 U.S. (2018); Lee v. United States, 582 U.S. (2017).
27. See generally Missouri v. Frye 32 S. Ct. 1399 (2012); see also Lafler v. Cooper 132 S. Ct.
1376 (2012).

judges.28 This increased prosecutorial power in the plea bargaining process

happens with less oversight and guidance by judges. At the same time, as
mentioned above, defendants who choose to proceed to trial and are con-
victed may be penalized through the trial penalty. The combination of these
factors has shifted the bargaining landscape so that prosecutors have extraor-
dinary power that is not effectively checked or moderated by judges.
Linked with this power, of course, is the potential for abuse. Only the
most egregious cases of prosecutorial misconduct are punished, and
there are so few as to be noteworthy when a prosecutor is actually disci-
plined.29 And yet violations of fair processes—hiding evidence, forcing a
plea when one knows the witness will not show up, or offering a plea for
time served in the face of a case that will surely lose at trial—are only
recently being discussed and critiqued.30 Similarly, reviewing ineffective
28. See, e.g., Fla. Stat. § 775.087.2 (2014) (“ .. . discharged a ‘firearm’ or ‘destructive
device’ as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20
years.” (id.)); CAL. PENAL CODE § 667 (West 2012) (California’s “three strikes and you are
out” law); see also Jeffrey Standen, Plea Bargaining in the Shadow of the Guidelines, 81 C ALIF.
L. R EV . 1471 (1993) (discussing the then newly adopted Federal Sentencing Guidelines and
the elimination of judicial discretion: “Judicial sentencing no longer limits prosecutorial
power in federal courts. The United States Sentencing Guidelines have substantially elimi-
nated the discretion of federal judges to determine final sentences and have thus curtailed
judges’ ability to constrain prosecutors. Today it is the sentencing guidelines, rather than
judge-determined sentences, that supply the parameters of plea bargaining.” Id. at 1475).
29. Duff Wilson, Prosecutor in Duke Case Is Disbarred for Ethics Breaches, N.Y. TIMES,
(June 16, 2007) (available at https://www.nytimes.com/2007/06/16/us/16cnd-nifong.html);
N.C. State Bar v. Jackson, Complaint, 14 DHC 20 (Disciplinary Hearing Comm., Wake
Cnty., June 26, 2014); Nicky Wolfin, Ferguson Prosecutor Says Witnesses in Darren Wilson
Case Lied Under Oath, T HE G UARDIAN , (Dec. 19, 2014) (available at https://www.
theguardian.com/us-news/2014/dec/19/ferguson-prosecutor-witnesses-darren-wilson-
michael-brown). An exoneree in Texas, Michael Morton, served 25 years for the murder of
his wife before he was released. The prosecutor in the case had failed to turn over two pieces
of exculpatory evidence. That prosecutor was prosecuted for the misconduct and sentenced
to ten days in jail, a $500 fine, and 500 hours of community service. He also resigned from
his position as a judge and gave up his law license. See Brandi Frissom, Morton’s Murder
Conviction Comes to Define Anderson, N.Y. TIMES , Feb. 3, 2013, at A27; Jordan Smith,
Former DA Anderson Pleads Guilty to Withholding Evidence in Morton Case, A USTIN
CHRON., Nov. 8, 2013.
30. See, e.g., American Bar Association Standing Committee on Ethics and Professional
Responsibility, Formal Opinion 486: Obligations of Prosecutors in Negotiating Plea Bargains
for Misdemeanor Offenses, May 9, 2019, available at http://www.abajournal.com/files/aba_
formal_opinion_486.pdf.

assistance of counsel cases on the defense side stops quite short of a full
procedural review.31
For the purposes of our discussion, we are dividing this renewed interest
into examining the plea bargaining outcomes and the plea bargaining process.
A. Plea Bargaining Outcomes
Due to the concerns about the overly coercive nature of plea bargaining,
and concerns about innocent defendants pleading guilty, much attention
has been paid to the outcomes of plea bargaining. Many criminal legal
system reformers have focused on transparency in terms of prison terms,32
arrests versus charging differences,33 racial bias in the system in terms of
arrests, charges, and convictions,34 jury selection35 and deliberation,36 and
other areas. We intuitively understand that transparency in the system
helps keep it fair,37 helps determine potential reforms,38 and helps keep the
public vested in the system.39
31. See, e.g., Alkon, Plea Bargain Negotiations, supra note 4, at 381–86.
32. See, e.g., Alkon, Overlooked Key, supra note 2, at 205 (discussing potential reform in
eliminating mandatory sentences).
33. See, e.g., John Pfaff, The Micro and Macro Causes of Prison Growth, 28 GA. ST. U. L.
R EV. 1239, 1242 (2012).
34. See, e.g., Jeffery Toobin, The Milwaukee Experiment, THE NEW YORKER (May 4,
2015) (available at https://www.newyorker.com/magazine/2015/05/11/the-milwaukee-
experiment).
35. E.g., Batson v. Kentucky, 476 U.S. 79 (1986) (holding that peremptory challenges
cannot be used to systematically strike prospective jurors from the panel on the basis of race);
J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 (1994) (holding that peremptory challenges cannot
be used to systematically strike prospective jurors from the panel on the basis of gender).
36. Death Penalty Case Heard by Racist Juror is Reopened by Supreme Court, N.Y. TIMES,
Jan. 8, 2018, https://www.nytimes.com/2018/01/08/us/politics/death-penalty-case-heard-by-
racist-juror-is-reopened-by-supreme-court.html.
37. Sarah Geraghy & Melanie Velez, Bringing Transparency and Accountability to Criminal
Justice Institutions in the South, 22 STA N . L. & POL ’ Y REV . 455, 458 (2011), https://www-
cdn.law.stanford.edu/wp-content/uploads/2018/03/geraghty_velez.pdf (“We have also seen
the deleterious effects of permitting [criminal justice institutions] to operate without trans-
parency: unfair and illegal criminal justice practices are permitted to flourish in secret”).
38. Innocence cases have led to a number of important reforms, including the Michael
Morton Act in Texas, which requires that prosecutors turn over all discovery, not only what
they consider to be exculpatory information. Michael Morton Act, S.B. 1611, ch. 49, 2013 Tex.
Gen. Laws 106 (codified at TEX. CODE CRIM . PROC . A NN. art. 39.14 (West 2014)).
39. Geraghty & Velez, supra note 37, at 456.

The need for transparency is no different in plea bargaining—the

process through which more than 90 percent of cases are resolved at both
the state and federal levels.40 As the Supreme Court has noted, “In to-
day’s criminal justice system the negotiation of a plea bargain, rather than
the unfolding of a trial, is almost always the critical point for a defendant”;
and “[plea bargaining] is not some adjunct to the criminal justice system;
it is the criminal justice system.”41 And, as important as examining these
results are, we should also be examining the process to learn how to
improve it.
B. Legitimacy of the Process in the Criminal Legal System
Perhaps it goes without saying that justice systems need to be just to

survive. Traditionally the question of whether criminal cases were handled
fairly was limited to whether the process complied with basic Constitu-
tional rights, including the right to a jury trial,42 due process,43 and the right
to counsel.44
Over the years the Supreme Court has given some better definition to
these rights, in the context of jury trials. For example, the right to counsel
was defined to mean that defendants have the right to competent assistance
of counsel.45 And the Court has given some definition to some rights
surrounding plea bargaining. If a defendant does plead guilty, that plea
should be voluntary and intelligent.46 In recent years, the court started to
look more critically at plea bargaining and decided that defendants have a
right to effective assistance of counseling in plea bargaining, at least in the
40. See, e.g., Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012).
41. See Missouri v. Frye, at 1407 (2012).
42. U.S. C ONS T . amend. VI.
43. U.S. C ONS T . amend. V.
44. U.S. CONST. amend. VI.
45. Strickland v. Washington, 466 U.S. 688 (1984). (Although, in practice, the Strickland
two-prong test is difficult to meet as the Court decided that “[j]udicial scrutiny of counsel’s
performance must be highly deferential ... ” (id. at 689), and “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance” (id. at 689).)
46. Boykin v. Alabama, 395 U.S. 238 (1969). In practical terms, if a defendant can answer
the plea colloquy questions correctly, then the court will find the plea is “voluntary and
intelligent.” For standard questions, see Federal Rules of Criminal Procedure, Rule 11(b)1.

client counseling phase of plea bargaining.47 However, most of the plea

bargaining process has not yet been subjected by the U.S. Supreme Court
to constitutional scrutiny.48 And, although plea bargaining is constitu-
tional, defendants do not have a right to a plea deal.49
For people to have trust in the system, and for it to work, both the parties
in the system and the public watching the system operate need to believe that
parties are treated fairly, that outcomes are just, and that the players in the
system with power—the prosecutors and judges—wield their power wisely.
If most plea bargaining is not subjected to serious constitutional scrutiny,
how do the parties and the general public determine whether the legal system
is legitimate?50 Legitimacy is a “key precursor of consent and voluntary
acceptance” of the law and legal authorities.51
A key to legitimacy is procedural justice, meaning that the process or
rules followed by those in positions of power are perceived to be fair.52
Procedural justice examines the process, rather than the outcome, to
explain why parties believe in systems.53 Those examining procedural
justice look at whether parties have a voice in the process, feel heard and
respected, and are permitted to be part of the negotiation.54 Procedural
fairness has been studied in negotiation in general and in criminal court
47. Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012).
48. For a longer discussion criticizing the narrow ruling of the Court in Lafler and Frye,
see Alkon, The U.S. Supreme Court’s Failure, supra note 4.
49. Brady v. United States, 397 U.S. 472 (1970).
50. This discussion on legitimacy borrows from an earlier work: Cynthia Alkon, Plea
Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?, 19
TR ANS NA T ’ L L. & CO NTEMP . PR OB S . 355, 379–81 (2010). See also Tom Tyler, Does the
American Public Accept the Rule of Law? The Findings of Psychological Research on Deference to
Authority, 56 DEPAUL L. R EV . 661, 668 (2007) (“the rule of law is based upon a willingness
to defer to legal authorities.”).
51.One theory of why people follow the law is “social control,” meaning that they follow
the law to avoid punishment or reap rewards. See, e.g., TOM TYLER , WHY PEOPLE O BEY THE
LAW 19–30, 45–50 (1990). Other theories are that people comply due to “social relations” and
“normative values,” id. at 23.
52. See, e.g., TYLER , id. at 161–66.
53. See generally Rebecca Hollander-Blumoff & Tom Tyler, Procedural Justice in Nego-
tiation: Procedural Fairness, Outcome Acceptance and Integrative Potential, 33 LAW & SOC .
I NQU IR Y 273 (2008); see also Nancy Welsh, Magistrate Judges, Settlement, and Procedural
Justice, 16 NEV. L.J. 983 (2016).
54. Nancy A. Welsh, Do You Believe in Magic: Self-Determination and Procedural Justice
Meet Inequality in Court-Connected Mediation, 70 SMU L. R EV. 721, 762 (2017).

processes.55 And the value of this kind of fairness to the ongoing legitimacy
of the court system should also be apparent.56 As Tom Tyler discusses, when
people feel that the process is fair, and when they think that the motives of
those handling the dispute are trustworthy, they are more likely to view the
authorities (courts and police) as legitimate.57 However, without better data,
and reporting on that data, it is hard both for the parties in the system and for
the general public to understand what is happening in the criminal legal
system and to understand whether the process is fair. Individual parties and
the general public draw conclusions from their individual experiences or
from the latest viral news item, which may or may not be representative of
how the larger criminal legal system is operating.
II. PL EA BARG AI NI NG DATA
Information matters for reform efforts. In recognition of this fact, there is

a growing movement to collect more and better data in general regarding
the U.S. criminal legal system.58 In 2018, Florida adopted the most com-
prehensive law for criminal legal data collection in the country.59 A handful
55. See, e.g., O’Hear, supra note 2, at 420–22, 426–31 (discussing the perspective of the
defendant, O’Hear notes: “One common method for prosecutors to learn the defendant’s
side of the story is through police reports. Police, however, are not always diligent about
collecting the defendant’s side of the story. Moreover, defendants may not think much of
their opportunity to be heard by the police. Their ‘hearing,’ for instance, may have occurred
in an emotionally charged arrest context, or may have been colored by coercive or deceptive
police practices. Thus, a serious commitment to voice cannot be satisfied through an
uncritical reliance on police reports.”).
56. Welsh, Do You Believe in Magic, supra note 54, at 762; Welsh, Magistrate Judges, supra
note 53, 1060; Nancy Welsh, Perceptions of Fairness in Negotiation, in 2 NEG O TI ATOR S DESK
REFERENCE 516–31 (C. Honeyman & A.K. Schneider eds., 2017).
57. TOM R. T YLER & YUEN J. HUO , TRUST IN THE L AW: E NCOURA GIN G P UBLIC
COOPERATION WITH THE POLICE AND COURTS, xiv–xv (2002).
58. See, e.g., Pamelia R. Metzger & Andrew G. Ferguson, Defending Data, 88 S. CALIF. L.
R EV. 1057 (2015); Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in
Criminal Courts, 129 H ARV. L. R EV. 2019 (2016); see also Amy Bach, Missing Criminal Justice
Data, N.Y. TI M ES , Mar. 21, 2018, https://www.nytimes.com/2018/03/21/opinion/missing-
criminal-justice-data.html; Michelle Chen, Our Systems for Tracking the Criminal-Justice
System are Broken, THE NATION , Mar. 27, 2018, https://www.thenation.com/article/our-
systems-for-tracking-the-criminal-justice-system-are-broken/.
59. Fla. Stat. § 900.05 (2019), Title XLVII, Criminal Procedure and Corrections (Chs.
900–999).

of other states, through their sentencing commissions, are also collecting

and reporting more data.60 But most states are still not collecting data in
a comprehensive way, leading to at least one non-governmental organiza-
tion, Measures for Justice, trying to fill the gap.61 Some suggest data should
be collected on a systemic level,62 while others suggest data collection
should focus on how public defenders do their jobs,63 or on how prose-
cutors do their jobs.64 Collecting better sentencing data is a part of all of
these efforts and suggestions.65 Yet, thus far the on-going efforts and
suggestions for improved data collection have not focused on data to better
understand the process of plea bargaining, rather than just the final result.
We know the number of cases resolved through plea bargaining. How-
ever, we do not know much beyond that simple statistic. For example,
what percentage of the entirety of cases:
• have a plea offer?

• have a plea offer at arraignment?
• plead guilty at arraignment?
We do not know:
• how long the offer stays open

• what percentage of cases plead out to the charges, as filed
• what percentage of cases plead to fewer charges, or charges that are
entirely different from the charges filed at arraignment
60. See, e.g., Minnesota Sentencing Guidelines Commission, https://mn.gov/sentencing-

guidelines/reports/; North Carolina Sentencing and Policy Commission, https://www.
nccourts.gov/commissions/sentencing-and-policy-advisory-commission#commission-
publications-1194; Washington State Sentencing Guidelines Commission, https://sgc.wa.gov/
sentencing-guidelines-commission/publications.
61. Measures for Justice, https://measuresforjustice.org/.
62. Crespo, supra note 58, at 2052–54.
63. See, e.g., Metzger & Ferguson, supra note 58; National Legal Aid & Defender
Association, Basic Data Every Defender Program Needs to Track: A Toolkit for Defender
Leaders, 2014, available at http://www.nlada.org/sites/default/files/pictures/
BASIC%20DATA%20TOOLKIT%2010-27-14%20Web.pdf.
64. See, e.g., Jason Kreag, Prosecutorial Analytics, 94 W ASH. U. L. R EV. 771 (2017).
65. See, e.g., Fla. Stat. § 900.05 (2019), Title XLVII, Criminal Procedure and Corrections
(Chs. 900–999); Minnesota Sentencing Guidelines Commission, https://mn.gov/sentencing-
guidelines/reports/; North Carolina Sentencing and Policy Commission, https://www.
nccourts.gov/commissions/sentencing-and-policy-advisory-commission#commission-
publications-1194; Washington State Sentencing Guidelines Commission, https://sgc.wa.
gov/sentencing-guidelines-commission/publications.

• how many cases ultimately plead out to a higher offer made by the
prosecution after the defense rejected the original offer
• how frequently defense lawyers make the first offer, or if they make
a counter offer
• how many cases prosecutors refuse to make any offer on
• if defendants reliably get better deals if they wait until their trial date,
or if they would get a better deal if they plead out at arraignment.
We also do not know if the type of case might mean there are different
answers to these questions. Do misdemeanor cases get essentially the same
deal at arraignment as they do on the day of trial? Is it worse for sexual
assault or child abuse cases on the day of trial, or on the first date in the
process when a witness would testify (such as a preliminary hearing)? Do
defendants get significantly worse sentences in felony possession of drug
cases if they go to trial? Does the type of drug make a difference? For
example, are opioid users treated differently than crack cocaine users? Does
the race of the defendant make the trial penalty more or less likely?
A. What We Currently Collect
Courts already gather significant amounts of information for state and

federal reporting purposes. Courts generally report on the number of crim-
inal cases, and report how many misdemeanors and how many felonies
were resolved in a given year.66 Courts may report on general categories of
cases, for example, what percentage of cases were drug cases.67 Courts
report on the number of cases that are dismissed, go to a jury trial, or are
resolved through plea bargaining. Courts may report the length of time to
resolution. Asking a few simple additional questions could dramatically
improve the information available regarding how plea bargaining works in
any given state.
66. See, e.g., Annual Statistical Report of the Texas Judiciary, prepared by the Office of
Court Administration, available at http://www.txcourts.gov/statistics/annual-statistical-
reports.aspx.
67. See U.S. District Courts—Judicial Business 2018, https://www.uscourts.gov/statistics-
reports/us-district-courts-judicial-business-2018. For example, the Federal Courts divide
criminal cases into five categories: Drugs, Immigration, Fraud, Firearms and Explosives,
and Other. However, when reporting on trial rates or plea bargaining rates, the data is not
divided to easily determine, for example, what percentage of immigration cases go to trial.

Current reporting about criminal cases is done by a few of the players,

often for very different political reasons. There is existing reporting from
district attorneys and public defenders, but these reports tend to focus on
the numbers of cases and the types of cases. There may be data about how
long until cases are resolved, but for the most part the data collected is not
intended to help practicing lawyers, or judges, figure out how to better
handle individual cases or overall caseloads.68 It is important to remember
that district attorneys are elected officials, and the annual reports are often
compiled to report back to their funders (such as a city council or board of
supervisors) or are seen as documents to support the next run for election.
District attorneys are often required to report certain types of data to keep
certain types of funding from either the state or federal budget. But, once
again, these reporting requirements are less about understanding what is
happening and more about justifying the continued spending or about
spinning what is happening in a particular light for political reasons.
Courts are also required to report certain information both to the state
(if it is a state court) and to the federal government. Often the reporting is
of aggregate data—how many cases were handled of a certain type—and it
is nearly impossible to identify individual cases from the data provided.
Reporting aggregate data may be all that is possible in a given court system
without the expensive and time-consuming process of creating a new data-
base system.69 We suggest U.S. courts move in the direction of collecting
data that is by case so that lawyers, policymakers, and researchers can gain
a better understanding of what is happening in a given courthouse with
particular types of cases. However, in the near term, even improving the
collection of aggregate data, by expanding the categories of data collected,
would be a tremendous improvement.
68. See generally, Metzger & Ferguson, supra note 58 (recommending better data col-
lection by public defenders to improve the quality of legal assistance); but see Thea Johnson,
Measure the Creative Plea Bargain, 92 IND. L. J. 901 (2017) (urging caution in data collection
as it will be hard to capture more creative lawyering that may include worse sentences but
better overall deals, such as pleading guilty to a lesser charge in exchange for more time in
custody than is usually given for that charge); and Jennifer Laurin, Data and Accountability
in Indigent Defense, 14 O HIO ST. J. CRIM . L. 373 (2017) (advocating caution with data
collection focused on indigent defense to avoid unintended consequences pointing out the
complexity of data collection in this area).
69. See, e.g., Court Statistice Project, http://www.courtstatistics.org (The Court Statistic
Project collects and publishes general state court caseload data from the courts of the fifty
states, the District of Columbia, Puerto Rico, and Guam.)

B. Improved Data Collection Efforts and Proposals
Policymakers, reformers, and scholars are increasingly calling for better

data collection to improve transparency and to make more meaningful
reforms.70 Without improved data collection, as Amy Bach, founder of
Measures for Justice noted, “No one can make informed policy decisions
to improve public safety, reduce costs or identify patterns of inequity.”71
Some states, notably North Carolina, Minnesota, Pennsylvania, and Wa-
shington, are collecting and reporting more data through their sentencing
commissions.72 This push for better data collection to better inform
criminal legal policy and to improve transparency was behind the recent
law in Florida.73 Under this law, Florida standardized definitions of the
data to be collected and standardized which agencies will be responsible
for collecting and reporting which data.74 This law requires that an
extensive list of data be collected by the courts on each case, including the
original charge, basic information about the defendants, whether the
defendant is indigent, bail or bond information, the charge actually
sentenced to, and the sentence imposed.75 Prosecutors are required to
collect data about their cases, including the annual felony and misde-
meanor caseloads, cases where no information was filed, and types of
drugs for drug offenses.76 Public defenders must collect and report data
on their felony and misdemeanor caseloads and the number of public
70. Kay L. Levine, Ronald F. Wright, Nancy J. King, & Marc Miller, Sharkfests and
Databases: Crowdsourcing Pleas Bargains, 3 TEX. A&M L. R EV. 653 (2019).
71. Bach, supra note 58.
72. North Carolina Sentencing and Policy Advisory Commission, https://www.
nccourts.gov/commissions/sentencing-and-policy-advisory-commission; Minnesota Sen-
tencing Guidelines Commission, https://mn.gov/sentencing-guidelines/; Pennsylvania
Commission on Sentencing, http://pcs.la.psu.edu/publications-and-research/annual-
reports; Washington State Sentencing Guidelines Commission, https://sgc.wa.gov/.
73. Fla. Stat. § 900.05 (2019), Title XLVII, Criminal Procedure and Corrections (Chs.
900–999). See also House of Representatives Staff Analysis, Bill CS/HB7109, Florida House
of Representatives, Criminal Justice Data Transparency, available at: https://www.flsenate.
gov/Session/Bill/2019/7109/Analyses/h7109c.JDC.PDF (“In an effort to increase the col-
lection and report of accurate and valid date in criminal justice, and promote transparency,
in 2018, the Legislature passed and the Governor signed SB 1392 ... ).
74. Fla. Stat. § 900.05 (2019), Title XLVII, Criminal Procedure and Corrections (900.
05(2) Definitions and 900.05(3) Data Collection).
75. Id. § 900.05(3)(a) Data Collection.
76. Id. § 900.05(3)(b) Data Collection.

defenders.77 The Department of Corrections, along with the courts, has

an extensive list of data that must be reported.78
Florida’s law will provide much more substantive information about
how the Florida criminal legal system is operating. For example, Florida
will have information regarding bail, charges filed, and case outcomes for
cases statewide. This law is a significant step forward to collecting what
Andrew Manuel Crespo described as “systemic facts”—facts “about the
criminal justice system itself, and about the institutional behavior of key
actors.”79 As Crespo said, these are facts that “frequently reside within the
considerable amounts of information already within criminal courts’ custody
and control.”80 Crespo argues that if courts did a better job of collecting
systemic facts, they could do a better job of providing oversight through
“systemic judicial review.”81 Crespo also suggests that systemic data col-
lection could help to monitor and put a check on prosecutorial power.82
Judges often don’t know whether prosecutors are, for example, withhold-
ing exculpatory information that they are required to turn over to the
defense.83 The other prosecutor categories that Crespo discusses are race-
based jury selection84 and selective prosecution.85 In each of these three
categories, courts could collect systemic data beyond individual cases,
77. Id. § 900.05(3)(c) Data Collection (Public Defenders have only five types of data that
must be collected: how many full-time public defenders; how many part-time public
defenders; how many contract attorneys representing defendants within public defender
offices; the annual felony caseload; the annual misdemeanor caseload).
78. Id. § 900.05(3)(d) Data Collection.
79. Crespo, supra note 58, at 2052.
80. Id. (emphasis in original).
81. Id. at 2069. For example, Crespo suggests collecting data about police and prose-
cutorial actions, such as the search and arrest warrant applications (something that the new
law in Florida does not yet specifically provide for). As Crespo explains, there is a wealth of
information that might help to better identify, for example, what neighborhoods police are
focusing on and possible racial disparity, or whether an area was actually a “high crime area.”
Id. at 2073–74.
82. Id. at 2086–87.
83. Id. at 2087.
84. Lawyers now need to collect data in their specific case and may not have access to
data about how a particular prosecutor behaves in all of their cases; for example, do they
routinely dismiss more African American prospective jurors? For an example of a case where
there was no shortage of information to support a charge of a Batson violation (Batson v.
Kentucky, 476 U.S. 79 (1986)), see Flowers v. Mississippi, 139 S.Ct. 451 (2018).

which may help to show trends, patterns, and whether there is systemic
racism in, for example, prosecutorial decisions on what charges to file (and
against whom). Florida’s new law does mandate collecting data on charges
filed and on cases where no information was filed. This category of data
collection may help to show whether some communities in Florida have
higher rates of criminal prosecution, or case dismissals, or not.86
With a similar focus on data, Professors Pamela Metzger and Andrew
Ferguson recommend that public defenders do a better job collecting data
and move beyond data collection that simply defends budgets and report
caseloads.87 Metzger and Ferguson suggest that better data collection
would be a step toward better lawyering, and help public defenders to
better identify areas where they could improve their effectiveness and
identify best practices.88 Florida’s new law requires very little reporting
from public defenders—and none of it is aimed at better understanding
what public defenders do or what they may need to better do their jobs.
Florida is asking for a simple accounting from public defenders, with no
substantive content.89 As Metzger and Ferguson point out, currently most
public defender data collection (and the new law in Florida is no exception)
“tracks caseloads and budgets, rather than defender performance and case
outcomes.”90
Metzger and Ferguson also suggest a systems approach to data collection
and compare what could be collected by public defenders to what is col-
lected in aviation and healthcare.91 Due to often competing goals,92 Metz-
ger and Ferguson suggest that public defenders may need to collect data
and not disclose it to prosecutors and police, both to protect the data and to
be sure they are collecting the kind of data that public defenders may need
to better evaluate how they are handling cases.93 For Metzer and Ferguson,
86. Although the new law does not mandate collecting data from police stops and when
those stops result in simply a warning or an arrest.
87. Metzger & Ferguson, supra note 58.
88. Id. at 1060–61.
05(3)(c) Data Collection).
90. Metzger & Ferguson, supra note 58, at 1067.
91. Id. at 1087–89.
92. Id. at 1090. For example, public safety is not a goal or mission for public defenders;
id. at 1091.
93. Id. at 1092.

a systems approach does not mean that the data collection should be done
and available to all in the criminal legal system (as the Florida law provides),
but rather that public defenders should be looking at the entire picture
when collecting data to improve how they do their jobs.94 Metzger and
Ferguson suggest combining outcome data with additional data to compare
to things like pretrial release (e.g., do defendants get better deals if they
plead guilty while out of custody?).95 Metzger and Ferguson also suggest
that public defenders collect data to evaluate when they might be causing
harm, for example by handling higher caseloads (i.e., do defendants get
worse deals when lawyers are handling more cases?). Data should be col-
lected on the variety of risks to help determine what are best practices for
public defenders.96 Metzger and Ferguson argue that without more serious
data collection, public defenders cannot identify what to change and may
have trouble even identifying what are actually best practices.97
Finally, a team of professors, Kay Levine, Ron Wright, Nancy King, and
Marc Miller, have examined different types of more open plea bargaining
to note how more information has changed the negotiation landscape in
these jurisdictions. For example, in Yavapai County, Arizona, for several
years, there was the equivalent of group plea bargaining every Friday after-
noon—dubbed “sharkfest” by local defense attorneys. They also examine
94. Id. at 1097–98 . (The data that they suggest should be collected should:
• “Identify, collect, and analyze case data that will isolate risks and performance
factors that correlate with negative and positive outcomes;
• Generate best practices that target remediable risks and generate practice norms
that improve case outcomes;
• Monitor and, as necessary, modify the implementation of the best practices and
the resultant measure outcomes;
• Develop pilot programs that test strategies designed to mitigate or eliminate the
identified risks and promote outcome enhancing performance; and
• Maintain a feedback loop between ongoing data collection, pilot program case
outcomes, and best practices implementation.”)
95. Id. at 1098–1101.
96. Id. at 1101–5 (for example, do caseloads, or number of hours worked, or jail release
policies that release mentally ill defendants without their medication, impact outcomes and
are there systems that should change as a result?).
97. Id. at 1106 (“Only with empirical proof of a causal or correlative relationship between
a particular practice and enhanced case outcomes should public defenders institutionalize
any lawyering protocol as a ‘best practice’ to be replicated in a systems approach. Until
defenders assemble and collect data about inputs and outcomes, defenders cannot truly
identify best practices.”).

other jurisdictions where judges were more openly involved in plea bar-
gaining and far more information was shared among the defense attorneys,
prosecutors, and judges than is typical in other jurisdictions. What they
found supports the call for more data and more transparency. As they note:
If the criminal defense organization of a given jurisdiction encouraged
defense attorneys to share among themselves the plea offers they received—
much the way prospective law students share with each other admissions
offers and financial aid offers received from various law schools—the pricing
for pleas would become more transparent, particularly for newcomers to the
profession. If defense attorneys were to report all offers received, the time to
trial at the moment of each offer, various background characteristics about
the defendant, and the estimated strength of the evidence, the true market
price for certain crimes would be accessible to other defense attorneys before
the start of negotiations . . . Crowdsourced plea-bargaining data can help
attorneys to connect the dots between cases and escape the illusion that
they negotiate alone.98
Each of these scholars thoughtfully describes why the courts or public

defenders should do better data collection. Some sentencing commissions
are collecting more data and releasing good reports from this data.99 And
the new law in Florida reflects the most serious attempt in the country so
far to collect system-wide criminal legal data. But what is missing in most
of these efforts is a focus on what data is needed to better understand the
single most common process for resolving criminal cases: plea bargaining.
C. What We Could Easily Collect
All of the information that could be easily collected falls into the general
category that Crespo identifies as information that is “already within the
criminal courts’ custody and control.”100 First, courts can easily report what
98. Levine et al., supra note 70.

99. See supra note 72.
100. Crespo, supra note 58, at 2052 (emphasis in original). See also Levine et al., supra note
70, at 664 (“What data points would a hypothetical database of plea negotiations capture? At
a bare minimum, the data collected for each case would include: (1) the initial charge; (2) each
offer and counteroffer from both parties; (3) the time elapsed since filing for each offer; (4)
the time remaining before any date set for trial at the time of the agreement; and (5) the
names of the attorneys and judges assigned to the case. They would also cover the terms of
the final agreement: (6) any changes to the charges filed; (7) sentencing recommendations to
the judge; (8) cooperation by the defendant; and (9) other terms of the final agreement.

the charge was at filing and what the charge was for the guilty plea (if it was
the same, or if it was different—did the defendant plead to fewer or
different charges?). This would not be overly time-consuming as the courts
will already have the information and would just need to systemically
report it. Collecting this information would answer the question of how
much charge bargaining is happening, and over what types of cases (for
example, is charge bargaining more or less common with felony drug cases
or misdemeanor theft cases?).
Second, courts can easily report who the defense lawyer was—was it a
privately retained lawyer, a public defender, or publicly appointed private
counsel? The new law in Florida requires the court clerks to report the
“attorney type.”101 Collecting this data is a valuable improvement, partic-
ularly if it is reported in a way that makes it possible to see what the deals
were for particular cases; then we could start to see whether the type of
lawyer makes a difference in terms of plea outcomes, understanding that
there are many other important variables (such as the defendant’s prior
record).102 But most counties do not otherwise report what percentage of
cases are handled by what type of defense lawyer; they simply report, at
most, the number of appointed counsel without any distinctions.
Third, courts could easily report dates of entry to the bar for both
prosecutors and defense lawyers on particular cases.103 As will be discussed
below, less experienced prosecutors are more prone to the Young Prosecu-
tor’s Syndrome and may, therefore, overcharge and give worse plea
deals.104 It might help if less experienced prosecutors had data to look at
to see how cases were handled by more experienced prosecutors.
These data fields would help readers later to re- construct the ‘what’ and ‘when’ of a plea
agreement.”).
05(3)(a)15 Data Collection).
05(3)(a)16.b and c) requires reporting the charge sentenced under and the sentence type and
length, so it looks like the new law in Florida will allow for these kind of comparisons, and it
includes information about defendants, which should allow for comparisons between
similar defendants.
05(3)) does not require this data to be collected and reported.
104. See discussion infra Section III.A; Ronald F. Wright and Kay L. Levine, The Cure for
Young Prosecutors’ Syndrome, 56 ARIZ. L. R EV . 1065 (2014).

Fourth, courts can report on whether a case involved a first-time offender

or repeat offender. Whether a person has a prior criminal record is a key fact
in every plea negotiation that can, and it does impact the outcome. There-
fore, knowing whether there is a prior conviction matters in evaluating
whether a defendant is being treated similarly or differently. Some states
with Sentencing Guidelines Commissions, such as Minnesota, already
report this data, at least in aggregate numbers.105
Fifth, courts could also easily collect how the plea offer was made (as part
of the written discovery, conveyed in writing through email or other means,
or conveyed orally). This would be a simple box to tick that could be part of
a standard waiver form, if defendants are filling out a waiver form, or it could
be collected by the court during the plea colloquy. This would be helpful to
know, particularly when combined with information regarding when cases
plead out in the process. In counties with electronic discovery, it is standard
practice for the prosecutor to make a first offer as part of the electronic
discovery.106 Under negotiation theory, the first offer can have more power
and create an anchor.107 It would be useful to know if this is happening, in
practice, in counties where first offers are made electronically. Negotiation
theory also posits that negotiators can be more successful when they nego-
tiate face-to-face.108 Collecting data about how the offers are conveyed could
help to build a better base of understanding about whether the way a defen-
dant received an offer, and whether the defense lawyer or prosecutor was the
first to convey the offer, results in different plea outcomes. We could exam-
ine outcomes, both in terms of the quality of the deal reached and the timing
of the deal, depending on where, when, and how the offer is made. Are
defendants disadvantaged by early plea offers given with electronic discov-
ery? Or does it not make a difference in the ultimate plea outcome?
105. See, e.g., Minnesota Sentencing Commission, Sentencing Practices: Annual Summary
Statistics for Felony Offenders 50–52 (Nov. 16, 2018), available at http://mn.gov/msgc-stat/
documents/reports/2017/UpdatedMSGC2017AnnualSummaryStatistics.pdf.
106. Tarrant County, Texas, is an example of this. Discovery is electronic, and when
defense lawyers get the case and download the discovery, it routinely includes a plea offer.
107. Russell Korobkin & Chris Guthrie, Heuristics and Biases at the Bargaining Table, 87
M ARQ. L. R EV. 795, 795–808 (2004); MAX H. BAZERMAN & M ARGARET A. NEALE,
NEGOTIATING R ATIONALLY 26–28, 49, 54, 62–63 (1992).
108. Noam Ebner, Negotiating via Email, in 2 N EGOTIATOR S DESK R EFER ENCE 115–32
(C. Honeymay & A.K. Schneider eds., 2017); see also Andrea Kupfer Schneider & Sean
McCarthy, Choosing Among Modes of Communication, id. at 107–14.

Sixth, and related to this, there could be a simple place to report time
limits on plea offers. For example, during the plea colloquy, the judge could
ask, “How was the plea offer conveyed?” And, “Was there any limit on the
plea offer?” If so, “What was the limit?” The defense lawyer could be
primarily responsible for answering, and the prosecutor would be able to
correct the record if they disagreed. Judges are generally checking off a plea
colloquy form, or their clerks are, so this information could be quickly
recorded for reporting. Asking these questions would take less than a min-
ute of precious court time.
Seventh, it would be useful to add one more question: What was the first
offer in the case? The defense lawyer could respond “the same as the plea
deal” or give the first offer. Again, this would not be time-consuming to
report, and it would give a wealth of information about how much bar-
gaining is going on, or at least how often the bargaining resulted in a change
of offer. This is information that is known to both lawyers at the time the
plea of guilty is taken and could easily be added into the plea colloquy or
plea waiver forms. Collecting first offers, and agreed offers, can help lawyers
to understand both what is the “going rate” for particular types of cases in
a particular county, and whether there is an advantage to pleading out
earlier. Do offers basically stay the same? Or do they get worse or better?
It will also help prosecutors to understand whether there is any advantage
to making time-pressured or take-it-or leave-it offers.
Finally, courts already collect basic data on defendants, including their
gender, age, and race. Placing this information in the context of plea bargain-
ing should not be difficult. The problem is that this data currently is not
reliably reported,109 and if it is reported, it may not be reported in a way
where it is clear how many people in what demographic categories were
arrested for what crimes. For example, we know that arrest rates for women
are increasing, but it is not clear from the court data for what types of charges
there are increases or if women are getting similar sentences to men.110
109. For example, in Tarrant County, Texas, courts report the race classification used by
the Tarrant County Sheriff. The Sheriff reports only two race categories: Black or Cauca-
sian, which leaves out Latinos, who are over 26% of the county’s population. Overall, whites
and African Americans are 65% of Tarrant County’s population. See Tarrant County,
Demographics, https://access.tarrantcounty.com/en/administration/staff/economic-
development-coordinator/demographics.html.
110. Data from prisons and that is reported by the Bureau of Justice Statistics give some
of this information, but it is not easy to break it down by state and quickly answer

This type of data collection about the plea bargaining process is different
than the disclosure of exculpatory evidence, but a similar type of filing
could be used. For example, in Texas, after the Michael Morton Act,
prosecutors routinely file information, or give an oral statement in court,
recounting what discovery they turned over to the defense. The Texas
court system seems to have adapted to the change without any serious
slowdown in case processing, despite the fact that this change in law was
more onerous than any of the above suggestions would be. It would be
ideal to require this kind of on-the-record disclosure in every case of what
evidence was given by the prosecutor to the defense. But these changes are
unlikely unless state law requires it.111
D. What is Harder to Collect
The more complicated data to collect is the data that describes what is going
on in the plea negotiation process.112 For example, how many offers were
made? Who made the first offer? How long did the lawyers talk (if they
talked at all)? How long did the prosecutor review the case before making an
offer? Were hard bargaining tactics used? This information has been collected
in the context of some qualitative studies on plea bargaining.113 We recog-
nize it would be difficult for a court to collect this data. One option could be
questions like, e.g., are men and women first-time drug offenders getting similar sentences?
111. For a discussion of why discovery should be mandated for plea bargaining, see
generally Alkon, The Right, supra note 4.
112. The authors of Sharkfests suggest additional information as well. “A more
complete database might also address ‘why’ by summarizing the reasons that convinced the
parties to agree to a guilty plea. Such reasons might include: (10) the presence or absence
of a suppression motion or a motion in limine regarding important evidence; (11) any
consultations with the victim, the officer, or the defendant; along with (12) the dates of
those consultations; (13) an assessment of the strength of the evidence in the case, after the
likely resolution of any pretrial motions; and (14) the role of any mitigating factors in the
defendant’s background. The reasons might also reflect systemic factors beyond the
confines of a single case, such as: (15) the number of other cases set for trial in the same court
session; (16) the relevance of an office policy that places an especially high or low priority on
the category of case involved; and (17) the availability of non-prison sanctions or non-
criminal responses to the social harm that the defendant caused.” Levine et al., supra note
70, at 664.
113. See, e.g., Wright & Levine, supra note 104 (reporting results of qualitative
interviews with prosecutors, including attitudes toward plea bargaining and how
prosecutors evaluate their cases).

to ask the defense lawyer and prosecutor to fill out a simple survey with each
case they plead out. Yet, this requirement could be overly onerous in courts
with heavy daily caseloads. For example, an in-custody drunk driving court
in a major urban area may handle well over a hundred cases in a given day.
That is a lot of surveys to fill out and a lot of extra questions, which would
slow down the case processing and make it far less likely that the questions
would be answered. It could be more realistic to focus on surveys in felony
courts, and not misdemeanors, due to the smaller felony caseloads. However,
we know that what happens with misdemeanors is important,114 so we do
not make this suggestion to minimize the value of getting additional infor-
mation about how misdemeanor plea bargaining works, but rather as a rec-
ognition that it may be difficult to ask the already overtaxed misdemeanor
lawyers and judges to add one more task while managing their large case-
loads. In addition, we propose that this more challenging information could
be studied through think tanks, researchers, and courts while recognizing
that national collection of this data is unrealistic for now.
E. Summary: Collecting Plea Bargaining Data
All of this data, the easier to collect and the difficult to collect, would give
information that focuses on questions about legitimacy in the criminal legal
system, particularly whether the process is fair. What is fairness when settling
cases? We will look next at examples from the civil system highlighting some
of the better protections in certain types of civil case settlement.
III. N E G O T I A T IO N P RO TECT IO NS T H R O UG H T HE
C O U RT S
Negotiation theory can help explain why data is important and how it can
increase the legitimacy of the plea bargaining system. We first turn to how
legitimacy is enhanced in other contexts through more information. Judges
are sometimes given the opportunity to review a civil settlement before it is
entered. This is similar to what happens in plea bargaining where a judge
114. See generally, Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy
in the Lower Criminal Courts, 45 U.C. DAVIS L. R EV . 277 (2011). This does not change our
suggestion that all of the data we could easily collect, be collected for both misdemeanors
and felonies.

must approve the plea deal. Other times, civil settlements will appear in
front of judges after settlement as contacts where one party claims a viola-
tion and wants the court to void the contract. We explain both below.
A. Judicial Review of Civil Settlement
In the civil system, judges review settlements in certain contexts to protect

unrepresented third parties or the public interest.115 For example, judges
must approve the custody settlements in order to protect the best interests of
the child, or settlements on behalf of a juvenile,116 or approve class actions117
where the judge has oversight to protect the interests of the class. In certain
other cases, like environmental settlements under CERCLA, judges review
the settlement to protect the future interests.118 In these cases, while the
process of bargaining may not be apparent to the judge, the judge does
review the details of these settlements and, in some way, ensures that these
settlements occur within the shadow of the law.119 In practice, this can be
similar to what judges do in plea bargaining before accepting the guilty or no
contest plea in court.
In jurisdictions where judges are allowed to participate in plea bargain-
ing,120 how they participate can vary greatly.121 Judges may not know what
has gone on in terms of negotiations before the case is called in court, and
115. But see Nancy A. Welsh, The Thinning Vision of Shelf-Determination in Court-
Connected Mediation: The Inevitable Price of Institutionalization, 6 HARV. NEGOT. L.
REV . 1, 96 (2001). (noting that court observers and critics complain that judges often rubber
stamp settlements.) For a comparison of judicial review in civil and criminal cases, see
Russell M. Gold, Clientless Prosecutors, 51 GA. L. R EV. 693, 716–21 (2017).
116. See, e.g., Spaulding v. Zimmerman, 263 Minn. 346 (1962) (where a settlement on
behalf of a juvenile was reopened after discovering that information was hidden from the
court and the plaintiff).
117. Fed. R. Civ. P 23(e); Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997).
118. See, e.g., John M. Hyson, CERCLA Settlements, Contribution Protection and
Fairness to Non-Settling Responsible Parties, 10 VILL. E NVTL. L.J. 277 (1999); U.S. EPA,
Negotiating Superfund Settlements (July 2019),
https://www.epa.gov/enforcement/negotiating- superfund-settlements (noting how
judicial consent decrees are required for significant clean up agreements.)
119. One might imagine that family court judges, for example, see numerous
examples of custody, providing plenty of knowledge about typical agreements.
120. Federal judges are not allowed to participate directly in plea discussions. Federal
Rules of Criminal Procedure 11(c)(1).
121.See generally, King & Wright, supra note 2.

there is no process to catch prosecutor misbehavior.122 For example, a pros-

ecutor may say on the record that there is an offer on the case, but may not
state that the offer was accompanied by a threat to add additional charges or
enhancements if the deal is not accepted by a particular time. Judges can
evaluate whether a particular offer seems in line with other offers in similar
cases that have plead out in their courtroom, but they don’t know how
representative the offer is with other similar cases in the same county, or in
the state as a whole. With more data and information, judges in the
sharkfest examples
were willing to speak up and voice their disagreements with prosecutorial

plea offers or express their concern about the weak correlation between the
proffered evidence and the charges in the indictment. In so doing, the judges
created some real limits on prosecutorial discretion. Prosecutors could still
make offers, but they lost the ability to force those offers onto defendants
who had no other realistic options.123
More data would enhance judicial review of plea bargains.

The ABA Standards on the Prosecution Function also give little guidance
to prosecutors on how to handle plea negotiations. In general, prosecutors
have a duty to “seek justice”124 and to be a “problem-solver responsible for
considering broad goals of the criminal justice system.”125 The Standards
state clearly that a prosecutor should “not agree to a guilty plea if the
prosecutor reasonably believes” that there is insufficient evidence to support
a conviction.126 The ABA recently issued a formal opinion on prosecutors’
obligations during misdemeanor plea negotiations.127 Under that opinion,
prosecutors should “avoid offering pleas on terms that knowingly
122. But see, e.g., Neila A. Lewis, Tables Turned on Prosecution in Steven’s Case, N.Y.
TIMES , April 7, 2009., available at https://www.nytimes.com/2009/04/08/us/politics/
08stevens.html. For example, in the attempted criminal prosecution of Senator Ted Ste-
vens, the judge dismissed the charge and even contemplated naming a special prosecutor to
investigate the Department of Justice prosecutors who brought the case, noting that he (the
judge) had “never seen mishandling and misconduct like what I have seen.”
124. ABA Standards on the Prosecution Function, Standard 3-1.2(b) Functions and
Duties of the Prosecutor.
125. Id. at Standard 3-1.2(f) Functions and Duties of the Prosecutor.
126. Id. at Standard 3-5.6 (g) Conduct of Negotiated Disposition Discussions.
127. ABA Formal Opinion 486, supra note 30.

misrepresent the consequences of acceptance or otherwise pressure or

improperly induce acceptance on the part of the accused.”128 The challenge
with all of these standards is that, so far, there is no legislation or caselaw to
support these limitations on prosecutorial conduct in plea negotiations.129
In civil cases, one lawyer could raise the issue of the other lawyer’s “bad”
behavior during discovery, for example. But it is not realistic to expect
defense lawyers to complain about the prosecutor’s behavior in plea bar-
gaining. In most jurisdictions, prosecutors and defense lawyers work
together every day and have multiple cases in common. If a defense lawyer
complains about the prosecutor’s behavior to a judge, that may make it
more difficult to negotiate other cases. We also know that lawyers, even in
less close-knit civil practice areas, rarely report each other for miscon-
duct.130 Another factor making reporting by lawyers difficult is the fact
that a much larger percentage of judges are former prosecutors, so they may
not even recognize as a problem behavior that they engaged in when they
were practicing law.131 All too often the judge simply hears a version of
“the defendant has rejected the plea offer and it is no longer on the table.”
Depending on how actively involved the judge is in plea negotiations, they
may or may not inquire further.
There is also no systematic gathering of information to determine if
certain types of defendants, such as African American men, get worse plea
deals than others.132 A judge could decide to reject a plea deal if he decided
128. Id.
129. Ronald F. Wright & Rodney L. Engen, Charge Movement and Theories of Prosecutors,
91 M ARQ. L. R EV. 9 (2007) (finding that the more possible crimes a prosecutor can charge, the
more charge bargaining occurs. However, if prosecutors have more options in terms of what
felony charge they can file for the same offense, they are less likely to reduce felonies to
misdemeanors. If prosecutors “have felony options, they generally choose them”).
130. Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 GEO . J. L EGAL
ET HI C S 1, 18 & n.115 (2007); and see William T. Gallagher, Ideologies of Professionalism and
the Politics of Self-Regulation in the California State Bar, 22 P EPP . L. R EV . 485, 612–14 (1995).
131. For example, at the federal level, 86 former prosecutors are judges, compared
to only 12 former defense lawyers, and just 4 of those were public defenders. See, e.g.,
Emily Hughes, Investigating Gideon’s Legacy in the U.S. Courts of Appeals, 122 Y ALE L.J.
2376, 2381–82 (2013).
132. For now, journalists tend to be the ones uncovering bias. For an example of
investigative journalism on the topic, see Josh Slaman et al., Florida’s Broken Sentencing
System: Designed for Fairness, it Fails to Account for Prejudice, SARASOTA H ERALD -TR IBU NE,
Dec. 12, 2006, available at http://projects.heraldtribune.com/bias/sentencing/. And see
Toobin, supra note 34 (discussing the Milwaukee example). We do have studies indicating

it was unjust, but it is rare that the average judge would have enough
information to make that evaluation or to be able to come to that conclu-
sion.133 If judges don’t know how the plea negotiations are being done, they
aren’t in a position to step in and correct problems. If judges added some
basic questions to the plea colloquy, as suggested earlier in this article, they
would be collecting information that might help them to identify systemic
problems and to step in and correct those problems. Under our current
system of negotiating in the dark, once a defendant has decided to accept
a plea deal, that individual defendant does not have any incentive to shine
a light on his particular deal or plea negotiation process. For the most part,
each defendant would rather just enter his guilty plea and be sentenced, and
not risk the deal not going forward.
B. Judicial Review of Contracts for Duress or Unconscionability
Parties in other contexts also have the right to rescind deals that are the
results of duress or unconscionability. Courts have ruled that there are
unconscionable power imbalances where those who have the power and
the information extort unfair bargains.134 For example, duress has been
found where a seller refuses to deliver the goods, already bargained for,
unless the buyer increases the price.135 Similarly, an improper threat to start
a civil action during a negotiation over the sale of property has also been
found to be duress.136 Or, under the doctrine of unconscionability, the
court has overruled bargains in which one side reaps all of the benefit of the
contract.137
There are virtually no limitations or standards for how prosecutors
negotiate during plea bargaining.138 In general, the Court gives great
racial bias in other types of negotiations; see, e.g., Ian Ayres, Fair Driving: Gender and Race
Discrimination in Retail Car Negotiations, 104 HARV . L. R EV . 817 (1991); Ian Ayres et al.,
Race Effects on eBay, 46 R AND J. ECON. 891 (2015).
133.We do not have data to know how often judges reject plea deals for any reason,
much less due to them reaching the conclusion that the deal is unjust.
134. Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
135. Restatement (Second) of Contracts § 175 (1981) (updated June 2019); the case is
illustration #2, Leeper v. Beltrami, 53 Cal. 2d. 195 (1959).
136. Id.; the case is illustration #5, Rose v. Vulcan Materials Co., 282 N.C. 643 (1973).
137. Williams, supra note 134.
138. Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of
Tyranny, 86 IOWA L. R EV . 393, 408–15 (2001) (“Despite the ABA standards, prosecutors

deference to prosecutorial discretion.139 Prosecutors can decide whether to

offer a plea bargain.140 And, once a prosecutor decides to make an offer,
there are few rules that constrain their behavior, as the U.S. Supreme Court
has rarely found prosecutorial behavior in plea bargaining to be a violation
of a defendant’s rights.141 The Court has held that prosecutors should not
breach previous agreements.142 However, the Court has not stopped pro-
secutors from routine hard-bargaining practices, such as threatening a
greater penalty if the defendant rejects a plea deal, including if the threat is
to seek the death penalty.143 The ABA Standards do clearly state that a
prosecutor “should not set unreasonably short deadlines, or demand
conditions for a disposition, that are so coercive that the voluntariness of
the plea or effectiveness of counsel are put into question.”144 Yet judges
have no ability to individually enforce these standards.
frequently charge more and greater offenses than they can prove beyond a reasonable doubt.
This tactic offers the prosecutor more leverage during plea negotiations, causing the
defendant to plead guilty to ‘reduced charges’ offered by the prosecutor for fear of being
convicted of all of the charges brought in the indictment.”).
139. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996); see also
Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978) (saying that when “the prosecutor has probable cause to
believe that the accused committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely
in his discretion.”).
140. Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
141. Josh Bowers, Fundamental Fairness and the Path from Santobello to Padilla: A
Response to Professor Bibas, 2 C AL. L. R EV. C I RCUI T 52, 56–61 (2011) (“Nevertheless, because
Padilla—like Santobello, Brady, and Bordenkircher before it—principally regulates the
fairness of constitutional criminal procedure, it can do only so much to promote ... sub-
stantively fair guilty-plea sentencing. Specifically, a prosecutor still may stack criminal
charges ‘to hide [her] weak hand’ or to ‘induce [the] defendant to surrender [his]
Cadillac trial in exchange for [a] scooter plea bargain.’ And a legislature still may ‘multiply
overlapping criminal statutes and inflate sentences to give prosecutors extra plea-bargaining
chips.’). Prosecutors are rarely disciplined for misconduct, although some scholars argue
that prosecutorial misconduct is getting more attention; see Bruce Green & Ellen Yaroshefs-
ky, Prosecutorial Accountability 2.0, 92 NOTRE DAME L. R EV. 51 (2016) (“Information
technology has served as a catalyst for change. There has been a shifting discourse about
prosecutorial misconduct, its causes, and potential remedies.” Id. at 115).
142. Santobello v. New York, 404 U.S. 257, 265 (1971).
143. See, e.g., Brady v. United States, 397 U.S. 742, 755 (1970), and Bordenkircher v.
Hayes, 434 U.S. 357, 364–65 (1978).
144. ABA Standards on the Prosecution Function, Standard 3-5.6 (d) Conduct of Nego-
tiated Disposition Discussions; see generally, Alkon, Hard Bargaining, supra note 2.

With more information, judges might step in to stop certain hard-

bargaining practices if they knew they were happening.145 For example,
judges might resist strict time limits on plea offers if they thought that more
time might make it more likely that a defendant would accept a deal. High-
pressure tactics might be subject to review (or rescission of the deal) if judges
actually knew what was happening over the course of the negotiation.
Prosecutors regularly make “exploding offers” by putting a time limit on
the offer.146 Sometimes it is a very tight time limit (such as “today only”).
We do not know how frequently time limits are put on plea offers. We do
not know how often it is such a tight time limit. We do not know if some
prosecutors use this tactic frequently, while others use it rarely. We do not
know if it is used more frequently with certain types of cases, like drug cases.
If we had information about how often prosecutors are making exploding
offers, it would be useful to explain why a law restricting such offers is
needed. Conversely, if we learn that exploding offers are rarely used, it may
help to focus reform efforts in another direction. Judges might encourage
(or demand) different prosecutorial policies if they collected data and dis-
covered that early, hard time limits on plea offers decreased plea deals and/or
disproportionately hurt defendants from a particular ethnic or racial group.
In the civil context, we protect negotiator’s consent by giving the parties
time to reflect on the deal. Consumers, for example, commonly get
a “cooling off period” where a consumer can decide to not go forward with
a purchase.147 In the criminal context, Stephanos Bibas has recommended
a cooling off period for any plea bargain involving five years or more in
prison.148 Bibas recommends this reform to reduce the pressure put on
defendants to agree to quick pleas before “they have come to appreciate the
consequences.”149 Bibas also recommends that defendants get the plea
145. “For example, the judge can suggest charging and sentencing options; the judge can
correct potential legal errors before they make it into the record; the prosecutor can use
predictions about the judge’s response to manage victim expectations; and the defense
attorney can use predictions about the judge’s response to manage defendant expectations.
And oftentimes, the judge’s view of the case leads to the offer of a more lenient sentence for
the defendant, as the prosecutor recalculates the chances of success on the merits.” Levine et
al., supra note 70, at 660.
146. Alkon, Hard Bargaining, supra note 2, at 408.
147. Nancy Welsh has also proposed a cooling off period for mediation settlements; see
Welsh, supra note 115, at 96.
148. Bibas, supra note 2.
149. Id.

offer at least three days before the court date where they would have to
decide if they want to accept the deal or not (preventing the “offer open
today only” dynamic). However, we do not know how frequently defen-
dants get the plea offer on the day they plead out. We do not know how
many felony plea offers include the need for a quick decision and no ability
to think about it or “take it back.” If we had data to better understand how
common these quick decisions are, particularly in more serious cases, we
would be better able to understand whether it makes sense to require three
days notice for a plea offer and/or to allow a cooling off period where
defendants could decide to withdraw their guilty plea.
C. Information Disclosure
In civil settlements when crucial information is not known to both parties,

courts have occasionally ruled that the deals are unfair or fraudulent.150 For
example, home sellers who hide defects in their houses that are not dis-
coverable (i.e., termites) are subject to damages.151 Parties negotiating
transactions have requirements for full financial disclosure. And lawyers
representing companies that operate on the stock market, for example, have
their own requirements for disclosure.152
In most jurisdictions in the United States, however, prosecutors are only
obligated to turn over exculpatory evidence.153 They do not need to turn
over all discovery. For example, prosecutors do not have a general obligation
to turn over impeachment evidence against a witness.154 This means that
150. Professor Welsh has noted that all of these examples involve enforcement of (pre-
sumably transactional) contracts between two private parties. The trend is likely to be
different when courts are being asked to undo settlements of litigated matters. She finds that
courts were less likely to set aside settlements than other contracts—because the courts have
an interest in settlements occurring. They are third party beneficiaries of the parties’ set-
tlement. She has called these “super-contracts.” See, e.g., Welsh, supra note 115, at 96, and
discussion in R ISKIN ET AL., DISPUTE R ESOLUTION AND L AWYERS 260–67 (West Pub-
lishing 5th ed. 2014).
151. Miles v. McSwegin, 388 N.E. 2d 1367 (Ohio 1979); see also Stambovsky v. Ackley, 573
N.Y.S. 2d 672 (New York 1991), where the seller was required to inform that buyer that the
house was supposedly haunted.
152. The Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204; see also M ODEL CODE OF
P ROF ’ L R ESPONSIBI LIT Y R. 1.6, M ODEL C O DE O F P RO F ’ L R ESP ON SIBILITY 4.1.
153 Brady v. Maryland, 373 U. S. 83 (1963).
154. U.S. v. Ruiz, 122 S. Ct. 2450 (2002).

defense attorneys are regularly bargaining without knowing the full extent of
the prosecutor’s case, so they may not know all of the evidence against their
client.155 They also may not know if there is helpful information, such as a
key witness in the case who has a perjury conviction, or any conviction that
could be used to impeach them on the witness stand. Depending on how
criminal records are collected and kept, it may not be easy for a defense
lawyer to find prior convictions for witnesses. It can be hard for defense
lawyers to find accurate rap sheets for their own clients. It can be even more
complicated when there are multiple names or when the name is a common
name. Prosecutors often have access to different databases, so they may get
more accurate information on criminal records than a defense lawyer may be
able to find.
In plea bargaining, there should be similar requirements for full infor-
mation disclosure on the part of the prosecutor. Only a few states, like
Texas, have more comprehensive discovery laws.156 At this point we do
not know how widespread a problem it is that defendants are pleading guilty
before getting full discovery.157 If we had data from states without such laws
showing when people are pleading guilty, and linking it to when they get
discovery, it may help to encourage more states to adopt better discovery
laws. In addition, defendants need basic information to help them evaluate
their cases and make better decisions.158 Pleading guilty before getting full
discovery is something that flies in the face of basic concepts of fairness.
D. Good Faith Requirements
In certain relationships in negotiation, we attach additional requirements

on how the negotiation must be conducted. Trustees and joint business
partners have requirements of good faith. And in management-labor
155. For example, defendants in many jurisdictions are regularly pleading guilty without
having first viewed the police body camera video. Laurent Sacharoff & Sarah Lustbader,
Who Should Own Police Body Camera Videos?, 85 W ASH. U. L. R EV. 267, 303 (2017).
156. TEX. CODE CRIM . PROC. A NN. art 39.14.
157. For an example of one of the few empirical studies on this question, see Jenia I.
Turner & Allison D. Redlich, Two Models of Pre-Plea Discovery in Criminal Cases: An
Empirical Comparison, 73 W ASH. & LEE L. R EV . 285, 322–28 (2016) (reporting the results
of a survey of lawyers in Virginia and North Carolina about the information defendants get
before a guilty plea).
158. For a more extended discussion of this point, see generally, Alkon, The Right, supra
note 4.

negotiations, certain tactics—like take-it-or-leave-it offers—are even pro-

hibited as a violation of the duty to bargain in good faith.159
Yet there are no similar guidelines in plea bargaining. Prosecutors often
refuse to negotiate after they make the initial offer.160 At this point there is
no data regarding how, when, and how frequently prosecutors make take-
it-or-leave-it offers. Are take-it-or-leave-it offers only made in cases where
there are standard deals and nothing can be expected to be accomplished by
negotiation (for example, first-time drug possession case or driving while
under the influence of alcohol)? Or do prosecutors make these offers with
more serious cases? Do they make these kinds of offers when there are
possible search-and-seizure motions, or not? Are there other tactics—like
threatening to add enhancements if the plea is not taken—that should also
be prohibited or tracked?
Without information about the history of these tactics, defense lawyers
also may or may not know whether to call a prosecutor’s bluff if they use
standard hard-bargaining practices. If a prosecutor says, “If you request
discovery, the deal is off”—the defense lawyer often only has her gut to
guide her. She does not know if that prosecutor will, in fact, call the deal
off.161 In some jurisdictions, for example, it is clear that once a case is sent
out for trial, the deals are off the table. In other jurisdictions, the moments
before a case is sent out for trial may be the time that the real bargaining
begins. If defense lawyers had data regarding how many cases plead out just
before being sent out to trial, or just after, and whether it is to the original
deal or a better or worse deal, they would be able to better assess what will
happen to their client depending on when they accept the plea offer. Of
course, prosecutors may also see that they are encouraging more cases to go
to trial by giving better deals later in the process, and they may change
when they make the best offer and do more early case assessment.162
159. See, e.g., NLRB v. GE, 418 F. 2d 736 (2d Cir. 1969), where the negotiation tactic of
Boulwarism (take-it-or-leave-it offers) was banned; see also DOUGLAS E. R AY ET AL.,
UNDERSTANDING L ABOR LAW 163 (2d ed. 2005); for a discussion applying Boulwarism
to plea bargaining, see Alkon, Hard Bargaining, supra note 2, at 417–20.
160. Prosecutors are not obligated to make a plea offer. It is entirely discretionary. See
generally, A LKON & SCHNEIDER , supra note 4, at ch. 2.
161. Levine et al., supra note 70 (more data would allow defense attorneys to call pro-
secutors’ bluffs).
162. See, e.g., Wright & Miller, supra note 2 (analyzing early case screening by the New
Orleans D.A.).

E. Systemic Review & Data is Needed
Comparisons to the civil justice system might help illuminate some dif-
ferences in available information, public knowledge, and intent. Settle-
ment has long been a part of the civil justice system—even before the
Alternative Dispute Resolution revolution in the 1990s.163 As ADR
became more integrated into the courts, most systems reflected on what
kind of process was needed164 and how courts might evolve.165 Much ink
has been spilled on design,166 the role of the lawyers,167 the vanishing
trial,168 levels of party satisfaction,169 and ongoing evaluation of the
system.170
163. Civil Justice Reform Act (1990) required district courts to develop plans for reducing
court costs and delays (28 U.S.C. § 471). Eight years later, the Alternative Dispute Reso-
lution Act (1998) required all district courts to authorize and promote the use of alternative
dispute resolution programs (28 U.S.C. § 651).
164. Frank E. Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-
Friendly Guide to Selecting an ADR Procedure, 10 N EGOTIATION J. 1 (1994), available at
https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1571-9979.1994.tb00005.x.
165. Owen M. Fiss, Against Settlement, FACULTY SCHOLAR SHIP S ERIES, Paper 1215 (1984)
http://digitalcommons.law.yale.edu/fss_papers/1215; Michael Moffitt; Three Things to Be
Against (“ Settlement” Not Included), 78 FOR DHAM L. R EV . 1203 (2009).
166. Sander & Goldberg, supra note 164; STEPHEN B. GOLDBERG ET AL., DISPUTE
R ESOLUTION: N EGOTIATION, M EDIATION, AND O THER PROCESSES (2d ed. 1992); ROBERT
BORDONE ET AL., DESIGNING SYSTEMS AND PROCESSES FOR M ANAGING DISPUTES (2d ed.
2018).
167. Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern,
Multicultural World, 38 W M . & M ARY L. R EV. 5 (1996); Chris Guthrie, The Lawyer’s
Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation
and Lawyering, 6 HARV. NEGOT. L. R EV. 145 (2001).
168. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts, 1 J. EMPIRICAL L EGAL STUD. 459 (2004).
169. Barbara McAdoo & Nancy Welsh, Does ADR Really Have a Place on the Lawyer’s
Philosophical Map?, 18 H AMLINE J. PUB. L. & POL’ Y 376 (1997); Donna Shestowsky & Jeanne
Brett, Disputants’ Perceptions of Dispute Resolution Procedures: An Ex Ante and Ex Post Lon-
gitudinal Empirical Study, 41 C ONN. L. R EV . 63, 94–106 (2008); Roselle L. Wissler, Mediation
and Adjudication in the Small Claims Court: The Effects of Process and Case Characteristics, 29 L.
& SOC ’ Y REV . 323, 341 (1995) (“The mediation process, regardless of whether it resulted in a
settlement, was evaluated as more fair and satisfying than trial. When assessing the medi-
ation session, both the successful and unsuccessful mediation groups felt that the resolution
process was more fair and were more satisfied with it than was the adjudication group.”).
170. See, e.g., J AMES KAKALIK ET AL., A N EVALUATION OF M EDIATION AND EARLY
NEUTRAL EVALUATION UNDER THE CIVIL J USTICE R EFORM ACT (1996); E.A. LIND ET AL.,
THE P ERCEPTION OF J USTICE: TORT L ITIGANTS’ V IEWS OF TRIAL, COURT-A NNEXED

Notwithstanding the confidentiality of settlements themselves,171 scho-

lars have focused on evaluating the parties’ satisfaction,172 understanding of
the process to ensure its fairness,173 and continuing calls for transparency to
track system fairness.174 In the most unbalanced situations with power
differentials, even more protections can be put into place to ensure a good,
fair, and unbiased process. For example, both domestic violence screening
processes175 and foreclosure mediation protocols176 try to ensure that less
“powerful” parties are protected.
F. Summary: Negotiating Protections
Why do we point all of this out? To demonstrate some key differences with
the criminal system: the criminal legal system was not created nor intended
to provide confidentiality—in fact, our early system designers, through the
U.S. Constitution, guaranteed the right to a public trial and to a trial by
A RBITRATION AND J UDICIAL S ETTLEMENT CONFERENCES (1989); Gary LaFree & Christine
Rack, The Effects of Participants’ Ethnicity and Gender on Monetary Outcomes in Mediated
and Adjudicated Civil Cases, 30 L AW & SOC’Y R EV. 767–97 (1996).
171 See, e.g., CARRIE MENKEL-MEADOW ET AL., MEDIATION: PRACTICE, POLICY AND
ETHICS 85 et seq. (2013).
172. McAdoo & Welsh, supra note 169; Shestowsky & Brett, supra note 169; Wissler,
supra note 169.
173. Note, however, that most of this data is based on short-term evaluation, not ongoing
collection of data regarding satisfaction. There are exceptions, of course. For example, the
Northern District of California has continuously sought this information from the parties.
See Nancy A. Welsh, Dispute Resolution Neutral’s Ethical Obligation to Support Measured
Transparency, 71 OKLA. L. R EV. 823, 840–44 (2019).
174. Welsh, supra note 173; Judith Resnick, The Contingency of Openness in Courts:
Changing the Experiences and Logics of the Public’s Role in Court-Based ADR, 15 NEV . L.J.
1631 (2015) (judges regularly “posit that openness supports informed discussions of gov-
ernment, fosters, perceptions of fairness, checks corruption, enhances performance,
facilitates accountability, discourages fraud, and permits communities to vent emotions.”
Id. at 1671–72.).
175. See, e.g., Nancy ver Steegh, Yes, No, and Maybe: Informed Decision Making About
Divorce Mediation in the Presence of Domestic Violence, 9 W M .& M ARY J. W OMEN & L. 145
(2003); Nancy ver Steegh, Gabrielle Davis, & Loretta Frederick, Look Before You Leap:
Court System Triage of Family Law Cases Involving Intimate Partner Violence, 95 M ARQ. L.
R EV. 955 (2012).
176. Andrea Kupfer Schneider & Natalie C. Fleury, There’s No Place Like Home:
Applying Dispute System Design Theory to Create A Foreclosure Mediation System, 11 N EV. L.J.
368, 376 (2011). But see Welsh, supra note 173, at 876–7, for more on balancing mediation
with transparency.

a jury of our peers to make sure that each defendant received justice as
perceived by his community.177 Criminal cases are public records and
criminal proceedings, from arraignment forward, all must happen in court-
rooms open to the public.178 Modern day plea bargaining has hijacked this
intention as the entire process happens in private and is completely hidden
from the public. The end result is often the only thing that can be known;
but unless someone is already following a case, or knows a case number, it
can be hard to find out what happened. And this also makes it far more
challenging for courts or the public to restrain bad behavior in negotiation.
IV. T HE R O LE OF L AW Y E R S I N N E G OT I ATI ON
Plea bargaining, at least at the felony level, includes lawyers on both sides.
Negotiation theorists have spent much time outlining how lawyers can best
serve clients in a negotiation and can shed light on how additional infor-
mation about the negotiation process could improve lawyering.
177. U.S. C ONS T . amend. V.

178. In general, the defendant has a right to a public trial, and that includes the pretrial
hearings. See, e.g., In re Oliver, 333 U.S. 257 (1948); Gannett Co. v. DePasquale, 443 U.S. 368
(1979). Courts can be closed for specific reasons, but those are limited; see, e.g., Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (holding that it was a violation of the
First Amendment to not allow news reporters in to observe a trial because of a state law
protecting underage victims). See also Waller v. Ga., 467 U.S. 39 (1984) (holding that the
right to a public trial included at a suppression hearing); and Daniel S. McConkie, Judges as
Framers of Plea Bargaining, 26 STAN. L. & POL’ Y R EV . 82 (2015), https://law.stanford.edu/
wp-content/uploads/2017/11/mcconkie.pdf. As just one example, one of us tried several
years ago to get data on felony drug cases from Dallas County, Texas. The County Clerk
referred the request to the District Attorney, who refused the request, stating it was asking
for confidential District Attorney files (it was not). After clarifying that all we wanted were
court records, not district attorney records, we were told that would need to be approved at
a higher level, and we would need to include a memorandum of understanding. Remember,
these are all public records, yet even a simple request for simple information is met with
resistance and withheld short of a formalized agreement or a Freedom of Information Act
Request (and even then it may not be easily available). See, e.g., Data Request Standard
Application, California Department of Justice, California Justice Information Services,
available at https://oag.ca.gov/sites/all/files/agweb/pdfs/corp/research-request-packet.pdf.
This 12-page application for data starts by explaining that “[t]he Department of Justice
provides data access to authorized users” and that users “must adhere to the Conditions of
Release Form pertaining to the dataset that you are interested in requesting.”

A. Current Standards for Competent Assistance of Counsel
One way of improving the negotiation process in the criminal system could
be ensuring competent lawyers. But the ABA Standards on Pleas of Guilty
and the ABA Standards on the Defense Function both fail to detail stan-
dards for good negotiation, or even merely competent negotiation, by
defense lawyers.179 The standards for competent assistance of counsel are
not well defined for any stage of the criminal process, but even less so for
plea bargaining.180 In Strickland v. Washington,181 the U.S. Supreme
Court held that a defendant’s Sixth Amendment right to counsel required
179. The ABA Standards on Pleas of Guilty focus on areas that are covered in the
standard plea colloquy, for example, that a defendant’s plea was freely and voluntarily given.
There are standards recommending that defendants not be forced to plea before they have
a lawyer to advise them. The ABA Standards do not discuss what defense lawyers should do
in the negotiation itself beyond not knowingly making false statements or representations
during the plea negotiation process and to “explore the possibility” of diversion. ABA
Standards on Guilty Pleas 14-1.3: Aid of Counsel, Time for Deliberation, https://www.
americanbar.org/groups/criminal_justice/publications/criminal_justice_section_archive/
crimjust_standards_guiltypleas_blk/; ABA Standards on Guilty Pleas 14-3.2.(d) & (e)
Responsibilities of Defense Counsel. The ABA Standards on the Defense Function also
give very little guidance. Among the duties that defense lawyers have, according to these
standards, is the duty to “be open to possible negotiated dispositions of the matter, includ-
ing the possible benefits and disadvantages of cooperating with the prosecution.” The
Standards detail the duties to interview, counsel, and advise, including about plea offers.
Standard 4-6.1 is on the “Duty to Explore Disposition Without Trial,” which requires
defense lawyers to be “open, at every stage of a criminal matter ... to discussion with the
prosecutor concerning disposition of the charges by guilty plea or other negotiated dispo-
sition.” Standard 4-6.2 is encouragingly entitled “Negotiated Disposition Discussions”—
but it focuses on discussions the defense lawyer should have with her client. The only
standards that are not focused on client-communication are a standard to not “knowingly
make false statements” and recommendations to avoid conflicts of interest, such as not
negotiating for multiple clients in the same case. The Standards are largely silent regarding
how to handle or manage plea discussions with the prosecutor. The only exception is that
the Standards recommend that defense lawyers should “bring to the court’s attention” if
their client was subjected to “unreasonably speedy deadlines or refusal to provide discover-
y ... unless, after consultation with the client, it is agreed that the risk of losing the nego-
tiated disposition outweighs other considerations.” ABA Standards on the Defense
Function 4-1.3(g) Continuing Duties of Defense Counsel; 4-6.1(a) Duty to Explore Dis-
position Without Trial; 4-6.2(f) Negotiated Disposition Discussions; 4-6.2(h)(i) Negotiated
Disposition Discussions; 4-6.3(f) Plea Agreements and Other Negotiated Dispositions.
180. This section borrows heavily from an earlier work, Alkon, Plea Bargain Negotiations,
supra note 4.
181. Strickland v. Washington, 466 U.S. 668 (1984).

that the lawyer be effective. This right was violated if (1) their lawyer’s
performance fell below an “objective standard of reasonableness”182 and (2)
the defendant showed that but for this performance by their lawyer, the
result would be different.183
Starting in 2010, the Court applied the Strickland two-prong test in
three plea bargaining cases. First, in Padilla v. Kentucky the Court held
that a defense lawyer violated the Strickland standards in plea bargaining
because the lawyer failed to advise the defendant about the immigration
consequences of his guilty plea.184 In Lafler v. Cooper and in Missouri v.
Frye, the Court found that defense lawyers had failed to meet the Strickland
standard during the plea bargaining phase due to ineffective counseling
because they had not conveyed an offer or had given bad legal advice.185
The Court has failed to look beyond the client counseling phase of
negotiation in examining whether a defendant enjoyed effective assistance
of counsel during plea bargaining. This has not been a mere oversight on
the part of the Court. Instead, as Justice Kennedy wrote, “Bargaining is, by
its nature, defined to a substantial degree by personal style. The alternative
courses and tactics in negotiation are so individual that it may be neither
prudent nor practicable to try to elaborate or define detailed standards for
the proper discharge of defense counsel’s participation in the process.”186
This means the Court has purposely steered away from deciding whether
a defense lawyer was competent during the actual negotiation.
One reason that the Court views negotiation as simply “personal style” is
due to their collective failure to view negotiation as a skill—like legal research
and writing, or examining witnesses, or oral arguments, or even client con-
sultation. However, simply getting the court to recognize that negotiation is
a skill that can be analyzed is no guarantee that the Court would delve too
deeply into what a particular defense lawyer did in a particular case; as the
Court has stated, “Judicial scrutiny of counsel’s performance must be highly
182. Id. at 2065.

183. Id. at 2068. Strickland was a death penalty case in which the Court stated that the
“purpose” of the Sixth Amendment right to effective counsel was “to ensure a fair trial.”1
The Court went on to say, “The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”
184. Padilla v. Kentucky, 559 U.S. 356 (2010).
185. Lafler v. Cooper, 556 U.S. 156 (2012); Missouri v. Frye, 566 U.S. 134 (2012).
186. Missouri v. Frye, 566 U.S. 134 (2012) (emphasis added).

deferential.”187 The Court has also stated that “advocacy is an art and not
a science”188 to explain why strategic choices should be “respected.”189 The
Court has said that “a court must indulge a strong presumption that coun-
sel’s conduct falls within the wide range of reasonable professional assis-
tance.”190 In incompetent assistance of counsel cases, the Court has
required defendants to overcome the presumption that the lawyer was engag-
ing in “sound trial strategy.”191
It is unlikely the Court will exercise greater scrutiny on negotiation
tactics than it has on trial tactics, but the lack of transparency and data
makes any scrutiny challenging. In a trial there is a trial transcript, and there
may be written motions and other records of what happened. There is no
record, or transcript, of what happens during a negotiation. Following Lafler
and Frye, it is now common for courts to put on the record any plea offer
and, if the defendant rejects the deal, a statement by the defendant that he
understands the deal and is choosing to reject it. But, from the perspective
of analyzing and establishing negotiation standards, this record is incom-
plete, to put it mildly. In fairness to the Court, it does make it more difficult
to fully analyze and define standards if there is no information about what
actually happened during the negotiation, beyond the agreed outcome, or
a statement acknowledging the failure to reach an agreement.192
B. Prosecutor Behavior
Not having good data can also skew how prosecutors approach the plea
negotiation process. If a prosecutor thinks that exploding offers, or other
high-pressure tactics, improve plea bargaining rates, they are more likely to
use those tactics. But what if they learn that plea rates are essentially the same,
regardless of hard-bargaining tactics? Might that encourage prosecutors to
adopt policies such as not putting time pressure on defendants to accept deals?
We also don’t know how different the deals are that are offered by less
experienced prosecutors as compared to more experienced prosecutors.
187. Strickland v. Washington, 466 U.S. 668, at 2065 (1984).

188. Id. at 2061.
189. Id.
190. Id.
191. Id. See also, e.g., Cullin v. Pinholster, 563 U.S. 170 (2011); Harrington v. Richter, 562
U.S. 86 (2011).
192. Michael Moffitt, Settlement Malpractice, U. CHI . L. R EV. (forthcoming 2019).

One excellent study by Ron Wright and Kay Levine suggests that newer
prosecutors do make deals with higher sentences or more serious charges as
they are more likely to see the world in black and white terms, and less
likely to recognize the weaknesses in their cases.193 But newer prosecutors
can’t easily find a listing of what more experienced prosecutors are offering
for similar cases in their jurisdiction, or beyond. Depending on how hier-
archical the particular prosecutor’s office is, more or less direction may be
given to more junior prosecutors.194 Beyond talking to others in their
office, prosecutors can’t easily find out what offers are made and when
and/or if hard-bargaining tactics are involved.
C. Summary: Lawyers in Negotiation
If some basic data were collected by courts, we would have a fuller picture
of how plea bargaining works. This is the kind of information the Court
could use in determining whether or what standards constitute effective
assistance of counsel in the plea negotiations. The ABA could also use this
information to put better definition into the ABA Standards.
V. N EG O T I ATI O N E F F E CT I V E N E SS R EL I E S ON
TRAN S P A R E N C Y
Particularly in negotiations where there are large power imbalances, such as

in plea bargaining, negotiation theory can be helpful in ensuring the most
effective negotiation possible.195 Negotiation theorists have advised weaker
193. Wright & Levine, supra note 104. See also Burke, Prosecutorial Passion, supra note 4,
at 186–187, 192, 194–203.
194. More direction, if it is absent discretionary power, may not be a good thing in terms
of helping newer prosecutors to move beyond the Young Prosecutors Syndrome. Wright
and Levine found that prosecutors who work in offices that have more discretion in making
offers tend to grow beyond the Young Prosecutor’s Syndrome more quickly because they
have to live with the results of poor decisions and may, therefore, learn more quickly how to
better evaluate the strengths and weaknesses of their cases, as well as simply mature in their
understanding of what is appropriate. See generally, Wright & Levine, supra note 104.
195. In examining how prosecutors and defense attorneys typically negotiate with one
another, one study found that these lawyers are, perhaps surprisingly, rather collaborative
and problem-solving. Schneider, supra note 4. The likelihood of repeat interactions, high
caseloads for both sides, and maintaining good relationships and reputations all play into
a criminal justice system in which many lawyers work collaboratively to plea bargain. On

parties in several key elements of negotiation: using criteria to set alter-

natives in order to avoid a bad deal; using criteria to set justifiable goals;
using other examples or cases to offer options; and using criteria to avoid
common negotiation errors and psychological mistakes. This section will
explain each of these.
A. Setting Alternatives
One of the most important responsibilities for defense attorneys is to

understand (and convey) the realistic alternatives to negotiation to defen-
dants. Similarly, prosecutors have a duty to do justice, including appropri-
ate and fair case disposition. Getting to Yes popularized the concept of
BATNA (best alternative to a negotiated agreement) over thirty years ago,
and understanding one’s BATNA is considered a basic negotiation skill.196
In general, understanding one’s BATNA protects you from making a bad
deal. A negotiator will not buy the car at this dealer if you know that you
can get it for less at another. You would not purchase one house priced
significantly over market if, all else being equal, a comparable home would
cost much less. And, in criminal law, you would only accept a deal if the
terms were likely to be preferable to going to trial. In terms of how the
negotiation operates compared to civil settlement, Hollander-Blumoff de-
scribes the bargaining thus:
Parties in the criminal context, like those in the civil context, are endowed
with certain “bargaining chips” that are derived from “the outcome that the
law will impose if no agreement is reached.” In criminal law, these chips are
dependent on at least three factors: (1) legal rules pertaining to evidentiary
issues; (2) the strength or weakness of the state’s case and the defendant’s case;
and (3) jury attitudes or tendencies in a given location. Both prosecution and
defense explicitly evaluate these and other criteria when performing their ex
ante analysis of how to approach a negotiation. Criminal attorneys on both
sides regularly perform an evaluation of their best alternative to a negotiated
agreement (BATNA) in order to determine whether to reach a plea agreement
and what the terms of that plea agreement should be. A trial on the merits of
the case is the most obvious alternative to a guilty plea.197
the other hand, this could also be because of the significant power imbalance between
prosecutors and defense counsel, which results in the defense’s inability to be competitive.
196. See also Roberts & Wright, supra note 3.
197. Hollander-Blumoff, supra note 4.

We have already discussed the problems with the trial penalty—the fact
that it can be so high, even innocent defendants are persuaded to plead to
time in jail in order to be released. Yet the lack of information about plea
bargaining also impacts BATNA analysis in that we only focus on those 3
percent of cases that go to trial. And so defense lawyers may negotiate
assuming that the trial outcome (with its penalty) is the BATNA. If,
instead, defense lawyers knew the “standard deal” that the prosecutor’s
office typically ended up with, that standard deal could be the predicted
BATNA and would also act as persuasive objective criteria. Defense attor-
neys would be bargaining in the shadow of that deal rather than the trial.
And given the difference between these two, defense attorneys would have
more bargaining leeway. Furthermore, for the judges who approve these
deals, their perspective on what is appropriate would be shifted. Instead of
the likely trial outcome (which, understandably is the number most avail-
able and obvious to judges), judges would have access to the data showing
typical, standard deals for all types of case and would be able to assess the
BATNA of the defendant.198
B. Setting Goals
Similarly, knowledge about the deals that have been offered in the past
would better allow defense attorneys to set optimistic and justifiable goals.
Negotiation treatises and texts focus on the importance of setting goals to
be more effective in negotiation.199 In plea bargaining, defense counsel
either can make the opening offer or will be responding to the prosecutor.
In order to know what would be a good and legitimate
198. See Welsh, supra note 53, at 1060 (citing the fact that some civil judges keep a set-
tlement log themselves so that they have a record of other similar settlements and can advise
the parties in front of them).
199. Andrea Kupfer Schneider, Aspirations in Negotiation, 87 MARQ. L. R EV. 675, 675
(2004) (“Negotiators should establish optimistic aspirations because empirical evidence has
shown negotiators with higher aspirations tend to achieve better bargaining results.”);
Jennifer Gerarda Brown, The Role of Hope in Negotiation, 44 U CLA L. R EV . 1661, 1669 (1197);
Russell Korobkin, Aspirations and Settlement, 88 CORNELL L. R EV. 1 (2012); R ICHARD
SHELL, BARGAINING FOR A DVANTAGE: N EGOTIATION S TRATEGIES FOR R EASONABLE
PEOPLE 34 (2d ed. 2006) (“Research has repeatedly shown that people who have higher
aspirations in negotiations perform better and get more than people who have modest or ‘I’ll
do my best’ goals.”).

outcome, in this particular case, one needs information about other

similarly situated defendants.
The concept of using criteria to be persuasive is highlighted by almost all
negotiation texts200 as a way for ensuring that both parties walk away with
a deal that can be sold to others as fair, can be viewed by the public as fair,
and by each party as sufficiently fair in order to increase compliance.
Measuring fairness, at least in terms of outcome, is reliant on objective
criteria—outside standards that most would recognize as fair.
In monetary deals, we often measure success by how much we have
gained or paid out compared to what the business standard would be (i.e.,
How does one’s salary compare to the market rate? How does the property
price paid compare to similarly situated property?). In civil settlements, this
comparison is made to the likely outcome of a court case: How much would
a judge or jury award the plaintiff if this case went to trial? And, with so many
settlements out of court, for example, in personal injury, lawyers and insurers
have actuarial tables that track typical payments for typical injuries.
In the criminal context, scholar Rodney Uphoff notes:
[I]t is critical to learn the “standard deal” in a case such as the defendant’s.
Although a prosecutor’s initial offer will depend on a number of variables,
prosecutors generally work from a starting point or “standard deal” that is
based primarily on the nature of the charge and the defendant’s record. The
extent to which a prosecutor ultimately will be willing to deviate from that
“standard deal” generally depends on a host of factors including: time and
resources; defense counsel’s ability, reputation and relationship with the
prosecutor; evidentiary concerns; the victim’s wishes; and the aggravating
and the mitigating circumstances of the case. Nevertheless, the criminal
defense lawyer who is aware of the “standard deal” prior to going into
a negotiating session will be better able to plan for that session as well as to
respond to developments in the negotiating process. 201
200. See, e. g., CARRIE M ENKEL-M EADOW ET AL., DISPUTE R ESOLUTION: BEYOND TH E
A DVERSARIAL M ODEL; R ISKIN ET AL., supra note 150. Furthermore, even the most popular
negotiation books devote whole chapters to criteria. For example, scholar Richard Shell
includes a chapter entitled “Third Foundation of Negotiation Effectiveness,” and Getting to
Yes has an entire chapter devoted to fairness, “Insist on Using Objective Criteria.” See
R ICHARD SHELL, BARGAINING FOR A DVANTAGE : NEGOTIATION S TRATEGIES FOR R EA-
SONABLE P EOPLE 40–41 (2d ed. 2006); R OGER FISHER & W ILLIAM U RY, GETTING TO Y ES :
NEGOTIATING AGREEMENT WITHOUT GIVING IN (1991).
201. Rodney J. Uphoff, The Criminal Defense Lawyer as Effective Negotiator: A Systemic
Approach, 2 CLINICAL L. R EV. 73 (1995).

The challenge is that there is no one place for defense lawyers to go to find
out the “standard deal.” Defense lawyers rely on word of mouth and talking
to lawyers in the particular courthouse or courtroom. The information they
learn is only as reliable as the source giving it, and it is difficult, if not
impossible, to fact-check or research further. In general, defense lawyers tend
to have strong comradery and share information freely. But the lawyer asked
might routinely get worse deals than other lawyers in the courthouse and not
know it, so they may not be sharing accurate information.
Using objective criteria is a critical part of negotiation strategy in terms
of setting one’s goals, and it also helps to frame persuasive arguments to the
negotiation counterpart. Professors Batra and Oliver write:
One less obvious advantage of raising criteria to justify offers is simply that
raising criteria provides a justification for defense counsel to make a
demand. Research has shown that the simple step of providing a justi-
fication for a demand, even a frivolous one, has the power to induce
compliance Defense counsel, then, may find themselves at an advan-
tage by using norms for judicial exercise of prosecutorial discretion. They
will be able to better justify their offer and thus increase the likelihood that
prosecutors will not reject the offer out of hand. By saying, “I think this
offer is acceptable because ,” defense attorneys can bolster their bar-
gaining position and induce the same psychological effect on their nego-
tiation partners—prosecutors—as in any other negotiation context. 202
In other words, information is key for both setting those goals of what
you want to accomplish and to help sell those outcomes to the other side.
202. Wesley MacNeil Oliver & Rishi Batra, Standards of Legitimacy in Criminal
Negotiations, 20 HARV. NEGOT. L. R EV. 60, 69–78 (2015). For example, the authors cite
a study that found how crucial some justification can be: “In a fascinating study, researchers
shut down all but one of the copy machines in a library, causing long lines to form at the
remaining one. The experimenters compared two types of asking when students were trying
to convince people to allow them to cut in front of them in the line. In one condition, the
experimenter simply said, ‘Excuse me, I have five pages. May I use the Xerox machine?’
Sixty percent of those approached this way allowed the experimenter to cut in front of them.
In the other condition, the experimenter said, ‘Excuse me, I have five pages. May I use the
Xerox machine because I have to make some copies?’ Even though the second approach added
an entirely inane justification (as the purpose of cutting in line at a copy machine is to make
copies), providing a reason induced compliance in ninety-three percent of subjects. The
researchers for this study suggest that this technique is effective because humans are hard-
wired to accommodate the seemingly legitimate demands of others, as doing so allows us to
build mutually rewarding relationships.” Id. at 72.

Particularly in a criminal legal system where legitimacy and fairness are

understood to be the goals of all parties, knowing these standards can be
helpful to the less powerful (the defense) in ensuring that the outcome is
fair.
C. Using Other Cases to Offer Options
Yet another stream of negotiation theory focuses on the importance of

offering options to achieve optimal outcomes. Instead of simple trades or
splitting the difference, perhaps there is a preferable way to reach an
agreement. A classic example is the couple planning a vacation—she wants
the beach, he wants the mountains, and once they each discuss options,
they settle on a lake near hiking paths.203 Or, in negotiating over an estate,
rather than selling all assets and dividing the money, parties might agree on
a point system in which they can choose certain items (paintings, furniture,
etc.) and only sell those assets that neither party wants.204 More simply, in
civil court settlements, there might be more than money that can be traded.
Perhaps a dismissed employee will (happily) accept less money in exchange
for good references and job retraining. Or perhaps two companies can
figure out a licensing agreement rather than litigate over allegedly stolen
intellectual property. In all of these instances, lawyers are helped by ana-
logic thinking—by knowing how other similarly situated cases were han-
dled and what other options there might be to help your client.205
In plea bargaining, and particularly in the face of trying to reduce mass
incarceration and deal with systemic problems, both prosecutors and
defense counsel would benefit by knowing how other defendants have
been treated in the system. Are there options for diversion sentencing? For
delayed prosecution? For a mix of community service and reparations?
203. Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of
Problem Solving, 31 UCLA L. Rev. 754 (1984); DEAN PRUITT & STEVEN L EWIS, T HE
PSYCHOLOGY OF INTEGRATIVE BARGAINING IN N EGOTIATIONS: SOCIAL-PSYCHOLOGICAL
PERSPECTIVES , 169–70 (Daniel Druckman ed., 1977).
204. See, e.g., STEVEN BRAMS & A LAN TAYLOR , FAIR DIVISION: FROM CAK E-CUTTING
TO DISPUTE R ESOLUTION (1996).
205. Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and
Teachable in Legal Education?, 6 HARV. NEGOT. L. R EV. 97, 97 (2001); Jennifer Gerarda
Brown, Creativity and Problem-Solving, 87 MARQ. L. R EV . 697, 697 (2004); Janet Weinstein
& Linda Morton, Stuck in a Rut: The Role of Creative Thinking in Problem Solving and Legal
Education, 9 CLINICAL L. R EV. 835 (2003).

Even for dropping the case completely? Only if this information is widely
shared can attorneys properly and consistently offer options.
D. Using Information to Avoid Negotiation Mistakes
A final area to address under negotiation theory is how a lack of informa-

tion can exacerbate negotiation mistakes. We know that lawyers often
make mistakes in civil litigation, for example, refusing settlement offers
that should have been accepted.206 We can imagine that similar mistakes
could happen in the criminal context as well with even less information
available. Without objective criteria that is known to both parties, nego-
tiators often need to substitute other information. This information, being
more subjective, can lead to the use of more heuristics and biases—short-
cuts—in negotiation that potentially lead to problematic outcomes. Mis-
takes from lack of information include anchoring, the availability bias, and
loss aversion. We will explain each in turn.
Anchoring is the phenomenon of using a number (even an irrelevant
number) on which parties now focus their attention.207 For example, when
asked about the average temperature in San Francisco, respondents
answered a significantly higher number if they were first asked whether
the average temperature in San Francisco was more or less than 558 degrees,
a clearly erroneous number.208 Similarly, real estate agents, who one might
expect to have expertise in pricing property, were anchored by the listing
price of a home: those who saw the higher listing price thought it was worth
more than those who saw the lower listing price for the same property.209 In
criminal law, we could imagine at least two potentially false or problematic
anchors—the maximum based on the prosecutor’s charges at arraignment
(with all of the enhancements and multiple charges added) and the trial
outcome (reflecting the trial penalty). Both of these could anchor all par-
ties—even the judge—on high and exceptional sentences.
206. See Randall L. Kiser, Martin A. Asher, & Blakeley B. McShane, Let’s Not Make
a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations,
5 J. EMP IR I CA L LEG AL STUD . 551, 566–67 (2008).
207. Korobkin & Guthrie, supra note 107, at 795–808; BAZERMAN & NEALE, supra note
107, at 26–28.
208. SCOTT PLOUS, THE PSYCHOLOGY OF J UDGMENT AND D ECISION M AKING 146
(1993).
209. BAZERMAN & NEALE, supra note 107, at 26–28.

As Stephanos Bibas has noted in explaining how anchoring can work in

plea bargaining:
For example, a prosecutor might initially offer a robbery defendant twenty

years’ imprisonment by piling on every plausible enhancement. The
defendant, of course, rejects this unreasonable offer out of hand, but the
initial offer serves as a high anchor. When the prosecutor comes back with
a revised offer of fifteen years, that offer sounds more reasonable. By the
time the prosecutor comes down to twelve years, the defendant is ready to
jump at the deal. If the prosecutor had started out at twelve years, however,
the defendant might have anchored on that number as the highest likely
sentence and rejected it as a bad deal. Anchoring also gives prosecutors
great power to influence judges’ sentences [W]hen setting sentences,
judges anchor heavily on prosecutors’ demands. This anchoring occurs
even if the judge is experienced, even if the judge knows the prosecutor is
inexperienced, and even if the judge claims that the prosecutor’s demand is
irrelevant.210
And note that anchoring may have even more impact on a defendant
who suffers from a cognitive disability or has other challenges with proces-
sing information and decision-making. Arguably, the high possible maxi-
mum sentence acts as an anchor even if the prosecutor has not made the
high offer.211 And defendants will anchor based on their previous cases, not
recognizing the impact of the prior conviction on what is realistic in terms
of sentencing on the new case. Defense lawyers are obligated to inform
their client about the possible maximum and minimum sentences in a case,
which means that a defendant will have heard the maximum possible
sentence as part of any discussion of a plea bargain offer. As Stephanos
Bibas explains, the “expected post-trial sentence is imposed in only a few
percent of cases,” which means it is “like the sticker price for cars: only an
ignorant, ill-advised consumer would view the full price as the norm and
anything less as a bargain.”212 But, the average defendant is often ignorant
about how the criminal legal system works, and even if they are well advised
by a defense lawyer, the maximum sentence can still act as a powerful
anchor. This is compounded by the fact that the average defense lawyer
210. Bibas, supra note 4.

211. For a discussion about how threats to add enhancements, additional charges, and the
generally high possible sentences can create a coercive atmosphere in plea bargaining see
Alkon, Hard Bargaining, supra note 2, at 408–13.
212. Bibas, supra note 2, at 1138.

has had the experience of their client getting “maxed out” after trial. Thus,
although the maximum sentence is less likely, it still acts as a powerful
anchor in the negotiation.
The professors writing about sharkfests hypothesized what more infor-
mation could mean and how this would counter any negative anchoring
effect:
First, we anticipate that a shared database would produce an anchoring

effect on negotiation outcomes; parties would diverge less often and less
severely from the average sentence for each charge. Clients of solo prac-
titioners and of new attorneys who might lack access to this type of data
would feel the benefits. Second, widespread knowledge of average sen-
tences will highlight the degree to which a prosecutor’s offer may be an
outlier, thereby providing cover to a judge who seeks to dispose of the case
on more reasonable terms.213
This brings up a different error—availability bias. Humans tend to recall

more vividly the information that is shocking and surprising as well as
recent.214 A prosecutor could overestimate the likelihood of conviction
and inflate the plea offer.215 So unreasonably high sentences or a trial that
has gone bad will be far more memorable for a defense attorney than the
numerous typical pleas they have made over the course of their career.
Similarly, for the defendant, this availability bias can work in both direc-
tions. He might vividly recall the friend put away for life but might also
recall the friend who was able to negotiate a diversion and not sufficiently
weigh the danger of proceeding to trial. Defendants with prior convictions
also regularly believe that their last deal is the one that is “available” and
don’t recognize that due to the previous conviction, that last deal is no
longer actually available. Only more information—data about all of the
different outcomes and how they occur—can help lawyers better counsel
their clients to avoid this bias.
A last negotiation error impacted by the lack of information is the
typical negotiation error of loss aversion—that negotiators will seek to
avoid certain loss and, therefore, overvalue a certain result compared to

214. Korobkin & Guthrie, supra note 107, at 800.
215. Burke, supra note 4, at 186–187, 192, 194–203 (A growing body of scholarship on
prosecutorial decision making explores the ways that the biased assimilation of evidence can
prevent prosecutors from believing defendants’ claims of innocence .. . ).

a potential loss.216 Some have written that loss aversion explains why
defendants accept pleas—that the trial penalty is so great that defendants
think they are getting good deals and accept the plea.217 And perhaps this
does explain some of the “innocent” defendants that plead guilty to time
served and get out. On the other hand, former prosecutor and negotiation
theorist Richard Birke has written that he thinks that defendants accept
deals because of poor information and that loss aversion plays a key role in
this. As Birke writes,
Specifically, I argue that the most convincing basis for why defendants plead
guilty despite loss aversion is that defendants are risk seeking in the domain
of losses, that they are not offered sufficiently “good deals” to warrant their
risk-averse behavior, but rather, that institutional pressures cause defense
attorneys to induce pleas from their clients.218
In other words, if defendants were better informed about the variety of

outcomes, they would either choose to go to trial or to at least continue
negotiating to reach a better deal. This may be particularly true in cases
where defendants aren’t risking a significant, or any, trial penalty. For
example, first-time driving while intoxicated cases could be the same sen-
tence if taken during a plea offer or after trial. The challenge is that there is
no data, beyond individual lawyers’ experiences, to inform defendants
about how much of a risk going to trial might be in their particular case.
E. Summary: Negotiating Effectiveness
When it comes to understanding the role information plays in negotia-

tion strategy, we can now understand why transparency is so crucial.
Lawyers need knowledge to help them counsel their clients better and
216. Daniel Kahneman & Amos Tversky, Conflict Resolution: A Cognitive Perspective in
Barriers to Conflict Resolution, in BARRIER S TO C ONFLICT R ESOLUTION 44, 54–55 (Kenneth
Arrow et al. eds., 1995).
217. Covey, supra note 4, at 229–30 (“However, where defendants are offered the
opportunity to avoid a 600% trial penalty, even substantial variances in estimated proba-
bilities fail to undermine the rational inducement to plead guilty. Rationality may be
bounded, but it is not inoperative. Large sentencing differentials dramatically reduce
ambiguity by exaggerating the penal consequences of the choice to contest a criminal
charge, and thus make it easier for even boundedly-rational and loss-averse decision makers
to make a utility-enhancing decision to plead guilty.”).
218. Birke, supra note 4.

avoid these errors.219 It is one kind of the knowledge that this article
focuses on: information that helps an individual lawyer in an individual
case to assess the deal, and information that helps lawyers to improve their
negotiation skills.
VI. B ARRI ERS TO DA TA COL L E C TION
We have argued that courts could easily collect and publicize an array of
data about plea bargaining that could assist all of the players in the criminal
legal system. First, courts can easily report what the charge was at filing and
what the charge was for the guilty plea (if it was the same, or if it was
different—did the defendant plead to fewer or different charges?). Second,
courts can easily report who the defense lawyer was—was it a privately
retained lawyer, a public defender, or publicly appointed private counsel?
Third, courts can easily report dates of entry to the bar for both prosecutors
and defense lawyers on particular cases.220 Fourth, courts can easily report
whether a case involved a first-time offender or repeat offender. Courts
could also easily collect data on how the plea offer was made and who made
the first offer.
So why isn’t there better data collection, even in these relatively easy
categories? The first barrier is the problem of implementation by already
overtaxed, and often underfunded, courts and lawyers. Secondly, judges,
prosecutors, and defense lawyers all resist more comprehensive data collec-
tion for fear it will be used against them or their institution. Third, improv-
ing plea bargaining for defendants is not politically popular. We will discuss
each of these barriers in turn.
A. Implementation Challenges
Comprehensive criminal legal data collection requires additional work by

judges, the court staff, and the lawyers (both prosecutors and defense
219. Catherine R. Albiston & Rebecca Sandefur, Expanding the Empirical Study of Access
to Justice, 1 W ISC . L. R EV . 101, 112 (2013) (explaining how lawyers can help counsel clients
and empower them to avoid social and psychological traps and how data is needed to track
what is happening to provide access to lawyers).
220. Fla. Stat. § 900.05 (2019), Title XLVII, Criminal Procedure and Corrections 900.
05(3) does not require this data to be collected and reported.

counsel). It may also require a different skill set as each institution may
need to hire employees who can collect and analyze data, as well as employ-
ees who have the technological skills to work with expanded databases (and
decide what databases to adopt, if there aren’t state-wide decisions). Judges,
prosecutors, and defense lawyers all work with limited time and money.
Taking even a few extra minutes on each case can quickly add up, and the
thought of being asked to do more—recording more information, filling
out more forms—can create serious resistance.
However, laws regularly change in ways that demand more of the
courts and legal professionals, and they adapt. As was discussed earlier,
the adoption of the Michael Morton Act in Texas is an example of a new
law that required additional work on each case (reporting on what dis-
covery was turned over), and the courts and lawyers seem to have adjusted
to this new requirement without creating serious case backlogs.221 One
could assume this could happen with improved plea bargaining data
collection, too.
Another practical challenge is that courts, prosecutors, and public de-
fenders may not have the necessary skills within their institutions to set up
the data collection, much less to analyze it.222 Existing databases or report-
ing mechanisms may be older and not flexible enough to easily add other
data points for collection. And if existing databases were created for entirely
internal uses, it may not be easy to make the data publicly available.223 This
can also relate to limited budgets and the fact that many courts and public
agencies (like the district attorney) may not have extra money in their
budgets to pay for a new database system or to hire a person to manage
and evaluate the data that is being collected. Policymakers should be
realistic in assessing the need to hire new personnel and the need to create
new data management systems and the cost this might include. Just as we
would expect the Federal Aviation Authority to include in its budget
personnel and data management systems to fully investigate plane crashes,
we should include in the court and institutional budgets provisions for
personnel and data management systems.224
221. See discussion supra Section I.B.

223. Id. at 2109–10 (discussing how courts can shift from internal information man-
agement system to collecting more systemic data).
224. Metzger & Ferguson, supra note 58, at 1073–74.

B. Institutional Resistance
In discussing barriers, one key challenge is that we do not know how the
public would respond to greater and easier access to information about how
the criminal legal system works. If, suddenly, substantially more informa-
tion was commonly available, it might initially lead to greater scrutiny of
our criminal legal system. Injustice does happen within the system, some-
times with devastating consequences.225 Increasing transparency may help
to shine a light on and help to bring appropriate attention and pressure to
bear for reform. The fear may also be one of mob rule—that the average
citizen will disregard the rule of law in favor of other goals and form
modern-day—and twitter-fueled—lynch mobs.
However, at least some of the recent examples of public pressure for
change have been due to perceptions that the system is not fair—not
demanding a lynching, but in at least some cases, the opposite, such as a
retrial.226 What happens in individual cases in the criminal legal system
225. For example, since 1989 there have been 2,468 exonerations, with the defendants
in those cases serving a total of 21,762 years, time that can never be returned. See
National Registry of Exonerations, available at www.law.umich.edu/special/exoneration/
Pages/Exonerations-in-the-United-States-Map.aspx (including DNA and non-DNA
exonerations).
226. See, e.g., Christal Hayes, Adnan Syed, Subject of “ Serial” Podcast, Wins Appeal for
New Trial in Murder Case, USA TODAY, Mar. 29, 2018 (following criticism about the trial
due to the Podcast Serial, Season One), available at https://www.usatoday.com/story/news/
2018/03/29/adnan-syed-subject-serial-podcast-wins-appeal-new-trial-murder-case/
470040002/; but see Sarah Koenig, Adnan Syed’s Conviction Reinstated, SER I AL , Mar. 15,
2019, available at https://serialpodcast.org/posts/2019/03/adnan-syeds-conviction-
reinstated. Another interesting example can be found in the prosecutors who are pushing
reform and using data to help promote fairness: “From Philadelphia to Houston to Seattle,
district attorneys recently elected on platforms of criminal justice reform are building
similar databases of their own. Often known as ‘do not call’ lists, they are also called
‘exclusion lists’ or ‘Brady lists’ after a famous Supreme Court decision requiring prosecutors
to disclose to defense lawyers information about unreliable police officers or other holes in
their cases. The goal is to help prosecutors avoid bringing cases built on evidence from
officers who are likely to be challenged in court, these new DAs say. Having a centralized list
at a district attorney’s office, they say, allows for the gathering of institutional knowledge, so
that if one prosecutor on staff knows about a bad cop, all the prosecutors do. But the
strategy has infuriated police unions and some law-enforcement officials, who say they
should get a say in who’s named on the lists—or else crime victims will pay the price.”
Justin George & Eli Hager, One Way to Deal with Cops Who Lie? Blacklist Them, Some DAs
Say, The Marshall Project, Jan. 17, 2019.

regularly sparks outrage or public criticism of judges or prosecutors.227

Although these cases are a small percentage of cases that go through the
criminal legal system, it happens frequently enough to cause concern among
all the players in the criminal legal system (particularly those who stand for
election) that if more information goes public, it will only create more outcry
and unwelcome scrutiny.228 This is one of the undercurrents opposing
increased transparency in the criminal legal system: fear among the profes-
sionals in the system that more information will only subject them to more
criticism and public condemnation, and make their jobs harder.229
227. See, e.g., Maggie Astor, California Voters Remove Judge Aaron Persky, Who Gave
a 6-Month Sentence for Sexual Assault, N.Y. TIMES, June 6, 2018, available at https://www.
nytimes.com/2018/06/06/us/politics/judge-persky-brock-turner-recall.html; Elisha Fieldstadt,
New Jersey Judge Spared Teen Rape Suspect Because He Came from a “ Good Family” , NBC N EWS ,
July 3, 2019, available at https://www.nbcnews.com/news/us-news/n-j-judge-spared-teen-rape-
suspect-because-he-came-n1026111; David Nakamura et al., Alex Acosta Resigns as Labor Secre-
tary, The Latest Trump Official to Leave Amid Scandal, W ASHINGTO N P OST, July 12, 2019,
available at https://www.washingtonpost.com/politics/alex-acosta-resigns-as-labor-secretary-
amid-intense-scrutiny-of-his-handling-of-jeffrey-epstein-case/2019/07/12/21954d50-a24b-11e9-
b8c8-75dae2607e60_story.html?utm_term¼.dd2070a9f064.
228. See, e.g., Nakamura et al., supra note 227 (example of public outcry against a
prosecutor, former Labor Secretary Acosta, for a plea deal that was seen to be too lenient);
Christal Hayes & John Bacon, Judge Aaron Persky, who gave Brock Turner lenient sentence in
rape case, recalled from office, USA Today, June 6, 2018, available at https://www.usatoday.
com/story/news/2018/06/06/judge-aaron-persky-who-gave-brock-turners-lenient-sentence-
sanford-rape-case-recalled/674551002/ (example of a judge who lost a public recall election
after sentencing a defendant to six months in jail and probation after being found guilty of
raping an unconscious woman); Richard A. Oppel Jr., The St. Louis Prosecutor Went After
the Establishment. Now the Tables are Turned, N.Y. TIMES, June 14, 2019, available at
https://www.nytimes.com/2019/06/14/us/st-louis-prosecutor-kim-gardner.html (example of
a reforming prosecutor facing public backlash).
229. Crespo, supra note 58, at 2112–14 (discussing how “Ideological opposition” by judges
can make it difficult to collect systemic data as some judges “are simply opposed to taking on
a more active role as systemic regulators of law enforcement behavior”). But this is hap-
pening even without greater data collection as more prosecutors are facing challenges from
unlikely foes, such as long-standing criminal defense lawyers; see Chris Brennan & Aubrey
Whelan, Larry Krasner Wins Race for Philly DA, THE PHILADELPHIA INQUIRER , Nov. 7,
2017, available at https://www.inquirer.com/philly/news/politics/city/larry-krasner-wins-
race-for-philly-da-20171107.html; see also Paige St. John & Abbie Vansickle, Prosecutor
Elections Now a Front Line in the Justice Wars, The Marshall Project, May 23, 2018, available
at https://www.themarshallproject.org/2018/05/23/prosecutor-elections-now-a-front-line- in-
the-justice-wars; see also Maya Wiley, Power of the Prosecutor: Reformer District Attorneys are
Changing Criminal Justice in Ways Legislatures Can’t, THE NEW R EPUBLIC, May 24,
2018, available at https://newrepublic.com/article/148305/reformer-district-attorneys.

Public defenders are not elected in most parts of the United States, but
they often have their own reasons to resist data collection.230 Pamela
Metzger and Andrew Ferguson describe “a data-resistant defender culture”
that makes increasing data collection difficult.231 According to Metzger
and Ferguson, “defenders instinctively reject the idea of a data-driven
systems approach .. . [as] each case feels unique, each client is different,
and each tactical decision reflects a myriad of idiosyncratic factors.”232 The
personality type that is attracted to public defense work, combined with the
daily realities of that work, contribute to this resistance to data collec-
tion.233 Defense lawyers handle one case at a time and look for the indi-
vidual differences; this can make it hard for them to see larger systemic
facts, and it can make them resistant to the thought that larger systemic
facts may help their individual clients.234 Related to this is the concern that
“a structured system that collects and analyzes data might value a routinized
metric .. . rather than exercise of judgement.”235 Public defenders also have
“an instinctive resistance to data collection based upon very real concerns
that this data might be used against their clients or their offices.”236 It is
important to remember that public defenders work in an adversarial legal
system and as such often have personal experience of prosecutors asking for
information they are not entitled to. Or they have experience with judges
not recognizing that the defense lawyer’s role in the system is not simply to
process cases more efficiently.
In addition, the criminal legal system as a whole has spent the last four
decades making it tougher on criminal defendants through harsher pen-
alties, increased criminalization, and limited checks on prosecutorial and
police powers. This is the perspective that defense lawyers bring into any
discussion about data collection. They often start the conversation wor-
rying how increased information will be used against their clients or used
230. Metzger & Ferguson, supra note 58, at 1077–81.

231. Id. at 1077.
232. Id.
233. Id. at 1077–78 (“As a general matter, public defenders are anti-authoritarian, both
toward ‘the state’ and toward their bosses ... Such a professional posture attracts rule-
benders, iconoclasts, and revolutionary spirits, all of whom generally resist being beholden
to a data-driven order.”).
234. Id. at 1077–79.
235. Id. at 1079–80.
236. Id. at 1080.

to justify harsher sentences.237 Therefore, the data collected must be data

that does not only contribute to business as usual within the criminal legal
system, but instead data that can lead to serious reform and change.238
The systemic data that we are suggesting should be collected to shine a
light on plea bargaining is that kind of data. Once public defenders have
positive examples of data collection leading to reforms that help their
clients, not simply reforms that find new ways to penalize their clients or
increase costs, some of their resistance to data collection may dissipate.239
As this discussion illustrates, the challenge may be convincing the
players and power-brokers within the system who might resist more
free-flowing information, to take the necessary steps to increase transpar-
ency and release more information.240 The recent law in Florida and
237. One of us, a former public defender, shared these concerns and has only slowly
come around to seeing the value of data collection. She is now convinced that better data
can lead to better justice. However, we are mindful that this change, like any other, can be
misused or have unintended consequences. For this reason we suggest that data collection
and reporting be done carefully and used thoughtfully so it supports the objectives of
improving fairness and justice in the criminal legal system.
238. One example of data collection contributing to positive change is the sentencing
disparity that existed in the federal system between crack and power cocaine. In the 1980s, at
the height of the War on Drugs, Congress passed new laws to punish crack cocaine offenses
more severely than powder cocaine offenses. This was, in large part, a political response to
the public outcry against crack, which was reported to be more addictive and leading to a
generation of “crack babies.” The media began reporting that the main distinction between
the offenses was race, as African Americans were more likely to be arrested for crack cocaine
offenses. Harlan Protass, Crack Sentencing Is Wack, But a fix may finally be on the way,
SLATE (Sept. 28, 2007), available at https://slate.com/news-and-politics/2007/09/ fixing-
crack-sentencing.html. Part of the building pressure to change the law was due to more
transparency and publicity about who was getting convicted under the harsher crack
provisions. Charisse Jones, Crack and Punishment: Is Race the Issue? N.Y. TIMES (Oct. 28,
1995), available at https://www.nytimes.com/1995/10/28/us/crack-and-punishment-is-race-
the-issue.html. Finally, in 2010, the law changed and the difference was reduced
(although not eliminated); Fair Sentencing Act of 2010.
239. If policymakers want to reduce public defender resistance to data collection, they
should be careful that the first round of data collection is not focused, for example, on more
punitive measures against defendants, or reduced funding to public defender offices.
240. One persuasive example might be from New Orleans, where the district attor-
ney’s office has used data for years. As Wright and Miller write, “The heart of this paper
. .. is our study of the New Orleans data. It confirms that a prosecutor can invest serious
resources in early evaluation of cases and maintain this practice over the long run. This
screening leads to relatively high rates of declination (that is, refusals to

improved data collection by some sentencing commissions are examples

that these hurdles are not insurmountable. Once the collection and re-
porting on data becomes more commonplace in Florida, it could help to
reassure those in other states that more data about how the criminal legal
system works is helpful for all the players in the system, and for the general
public as well.
C. Not Politically Popular
We are advocating collecting better data about plea bargaining in large part
to help criminal defendants and to make plea bargaining more fair for
them. We think that it helps the criminal legal system as a whole if criminal
defendants are treated more fairly. But we are mindful that it is not polit-
ically popular to help criminal defendants get better deals, which could be
one outcome of better data collection.241
We are also mindful that our suggestion for better data collection for
plea bargaining is part of a larger movement advocating better data collec-
tion in the criminal legal system. It might be politically difficult to focus a
new law only on collecting data for plea bargaining, despite the domi-
nance of plea bargaining in the criminal legal system. Once again, Florida
provides an interesting example. If policymakers and reformers are already
pushing for greater transparency and improved criminal legal system data
collection, then we should ensure that collecting data specific to plea
bargaining—the data we have suggested in this article—also be collected.
It is, in fact, a glaring omission in the Florida law, and in some of the other
proposals for data collection, that there is no concerted effort to collect
more and better data on plea bargaining, the dominant process for case
resolution in the criminal legal system.
prosecute a case after the police recommend charges). When combined with policies
discouraging reductions in charges once they are filed, the results are lower levels of
negotiated pleas, slightly higher rates of trial, and notably higher rates of open guilty pleas
than in typical American jurisdictions. This combination of policies can survive political
and administrative challenges of many types.” (Wright & Miller, supra note 2, at 34, 58–
68, 74, 84).
241. See, e.g., Nakamura et al., supra note 227; see also Cynthia Alkon, Acosta and Bad
Plea Deals, July 12, 2019, Indisputably.org, available at http://indisputably.org/2019/07/
acosta-and-bad-plea-deals/.

CONCLUSION
Plea bargaining is bargaining—it is a negotiation between the defendant,

or his lawyer, and the prosecutor with numerous potential outcomes
ranging from prison to jail to diversion to dropping the charges. Plea
bargaining as both part of the criminal legal system and as a private
negotiation between parties is often ignored in terms of attention paid to
fairness issues in the criminal legal system. This is a mistake. Under-
standing how plea bargaining operates is crucial to determining how
effective the criminal legal system is—and understanding the process and
results of plea bargaining are crucial to maintaining the perceived fairness
of this system.
Plea bargaining is a particular kind of negotiation operating under con-
straints242 that are even more important to address. We often see lawyers
negotiating throughout their careers on behalf of clients,243 but the plea
bargaining context is particularly challenging.244
One side has the weight of the government, the finances as needed to
investigate, and particularly in the last two decades, the strength of man-
datory minimum sentencing and other changes in the sentencing laws.
Although this article is not about how the criminal legal system is biased
or how prosecutors wield incredible power or even the problem of mass
incarceration, all of those factors are reflected in a bargaining system in
which one side has all the power. In fact, it is hard to negotiate effectively
at all during the plea bargaining process given the underlying law, con-
straints by case load and finances often faced by the defense, flaws in the
plea bargaining process itself, and lack of information that all parties have
with other cases. This article focuses on how information—how
242. Cynthia Alkon, Plea Bargaining: An Example of Negotiating with Constraints, in 1

NEGOTIATION DESK REFERENCE 683–700 (C. Honeyman & A.K. Schneider eds., 2017).
243. Note that reports on lawyering skills for decades have listed negotiation and
problem-solving as keys for success. See A MERICAN BAR A SSOCIATION , L EGAL EDUCATION
AND PROFESSIONAL DEVELOPMENT—A N E DUCATIONAL C ONTINUUM . R EPORT OF THE
TASK FORCE ON LAW SCHOOLS AND THE PROFESSION : NARROWING THE GAP (aka Mac- Crate
Report, 1992). See also W ILLIAM M. SULLIVAN , A NN COLBY , J UDITH W ELCH W EGNER ,
L LOYD BOND , & LEE S. S HULMAN, EDUCATING L AWYERS : PREPARATION FOR THE
PROFESSION OF LAW (aka Carnegie Report, 2007); and ROY STUCKEY ET AL., BEST
PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP (2007).
244. See generally Alkon, supra note 242.

transparency—can particularly impact our understanding of effective and

fair negotiation results.245
Our criminal legal system relies on fairness—in both process and out-
come—for its legitimacy. And while the public—as well as the players in
the system—have been aware of concerns with mass incarceration, inno-
cents being convicted, and a stark power imbalance, reform efforts thus far
have focused on law and sentencing. We believe that a focus on the plea
bargaining process itself can also improve the system. In order to under-
stand what is happening, we need data. And this data must be transparent
to lawyers, defendants, and the public. With transparency, we would be
better able to promote negotiation effectiveness, competence in represen-
tation, and procedural justice. We can also target reforms that enable the
lawyers to perform their jobs more fairly and effectively. In short, shedding
more light on the process will keep us from bargaining in the dark.
245. As the Sharkfest authors note, “Crowdsourced plea bargain data, in the short run,
might help isolated attorneys avoid selling too cheaply or selling out too early. And in the
long run, this data might provide the detailed portrait necessary to convince courtroom
actors and political actors-and ultimately the voting public-where and how to change the
bargaining options at a deeper level.” (Levine et al., supra note 70, at 670).

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Legal Studies

Research Paper Series

Bargaining in the Dark: The Need for

Andrew Kupfer Schneider

This paper can be downloaded without charge from the

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*Professor of Law and Director, Dispute Resolution Program, Marquette University,

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challenging, necessitating (or requiring) the best of negotiation theory to

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What happens when lawyers lack information? Their ability to bargain

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There is a renewed interest in examining the criminal legal system as the

10. ALKO N & SCH NEI DER , supra note 4, at 2–3.

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codes to increase potential sentences, add enhancements, and expand the

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20. See discussion in Alkon, Overlooked Key, supra note 2, at 202–4.

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judges.28 This increased prosecutorial power in the plea bargaining process

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A. Plea Bargaining Outcomes

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The need for transparency is no different in plea bargaining—the

B. Legitimacy of the Process in the Criminal Legal System

Perhaps it goes without saying that justice systems need to be just to

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client counseling phase of plea bargaining.47 However, most of the plea

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II. PL EA BARG AI NI NG DATA

Information matters for reform efforts. In recognition of this fact, there is

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of other states, through their sentencing commissions, are also collecting

• have a plea offer?

• how long the offer stays open

60. See, e.g., Minnesota Sentencing Guidelines Commission, https://mn.gov/sentencing-

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A. What We Currently Collect

Courts already gather significant amounts of information for state and

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Current reporting about criminal cases is done by a few of the players,

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B. Improved Data Collection Efforts and Proposals

Policymakers, reformers, and scholars are increasingly calling for better

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defenders.77 The Department of Corrections, along with the courts, has

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Each of these scholars thoughtfully describes why the courts or public

C. What We Could Easily Collect

98. Levine et al., supra note 70.

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Fourth, courts can report on whether a case involved a first-time offender