Doug Berman is recommending Grits for Breakfast's post reviewing a recent article on plea bargaining and cognitive biases that affect it. Let me echo that rec. As someone who watched desperately needed sentencing and corrections reform flounder and then die in WI in the name of a "judicial discretion" that is determined by prosecutors and defense counsel over 90% of the time (and this says nothing about research indicating judges only consider a half dozen at best possible options for sentence lengths out of the many months they could assign, coincidentally all in multiple of 6), I have a special interest in the reality of plea bargaining versus the rhetoric of judicial discretion and fear of structured sentencing.
The article itself does serve a valuable function as one of the few pieces to seriously deal with the real world of sentencing, not the one that captures the bulk of academic sentencing attention. But Grits' analysis is even more important because, as a trained (and recovering?) economist, he can take apart much of the rationale for this destruction of right to jury with his own inimitable style. And he does. Much better than I can, so go check him out.
But before you go, I'd like to make a point he touches broadly before narrowing to a specific argument, a point that I think needs more detail. He says, "Ever since I majored in economics as a youngster at UT-Austin two decades ago, I've always had a latent fascination with the dilettantish economic assumptions behind much of criminal law and the flaws behind them." These assumptions behind much of criminal law explain so much of why we're so far off base in creating a system that addresses what society wants and needs from its crim justice, how we can get to a bad place where prosecutors can go so wrong and defense counsel can proudly proclaim that defendant guilt doesn't matter and the justice is irrelevant.
We're at the cancerous place because of the flaws that Grits mentions. When you think of "free markets," you have two choices. Markets that just naturally spring from God's brow if silly, ignorant humans would just get out of the way or markets that have to be consciously structured and zealously maintained to prevent the natural dispositions of humans toward power, accumulation, and self-protection from directing the results predominantly their way. The first option is a religious truth, the second is reality. But being a religious truth, the first is what guides far too much of our reasoning about policy, and not just in economic policy but in education, health, name it.
But reality is that very special and specific foundations have to be laid and protected for markets to generate the outcomes their proponents advocate--in information, power relations between buyers and sellers, and especially in cognitive abilities, which is the point of the article and of Grits' commentary on it. You can't just say you have a market and then let things happen. You can't just say you have free speech and a marketplace of ideas and then let the folks able to buy the biggest megaphones and glittery-ist channels run wild. And you can't just say, we'll let prosecutors and defense, with unequal resources and abilities, do their thing in the market-like process of crim just, whether in a courtroom or out in the halls, and then have the justice and concern for social welfare that the rest of us require turn out magically okay. (Think both O.J. and Genarlow.) Yet, these latter crim just outcomes are all condoned by the magic invocation of process and competition and winner-take-all, just like in our present oligopolistic economy and media. And those who challenge, who note all the naked emperors, are treated to derision for not having drunk the kool-aid.
I don't know how we get out of this. Too much of our culture is based on this delusion of competition and gaming automatically producing optimal outcomes, of whatever the process produces, no matter how far from the actual conditions on which it's supposed to be based or from the social benefits that we want it to produce, being okay. This economic way of thinking pervades not just too much of our economic and social policy but of our law in general and criminal justice in particular. Some of us non-lawyers and non-economists have thankfully still enough sense of the community and of the need to actually look at outcomes rather than assume them unimportant as long as the hallowed process is functioning, however badly, to give hope of change. But we also see the near impossibility of getting economists and lawyers to give up their ideologies and start focusing on what works and what's needed by our communities at a critical time in our history. The light needs to be bright, shined hard, and disinfecting. Maybe articles like this one and people like Grits who seem to have survived the conditioning will get us started.
It can't be too soon.