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I was delighted to be invited to comment on Ronald Wright and Marc Miller's important and instructive article, The Screening/Bargaining Tradeoff. Those familiar with the authors' work, including their original and fascinating criminal procedure casebook, will be unsurprised by many of the article's virtues, including a focus on empirical examination of real-world practice and (perhaps a special case of that more general virtue) attention to practices at the state and local level, where most criminal law enforcement actually occurs. Wright and Miller develop some interesting insights into the potential for changes in plea bargaining practices that have frequently been treated as inevitable, and they do so, characteristically, through a close examination of actual practice in a particular district attorney's office. Their provocative article deserves, and will surely receive, a wide and appreciative readership.

The article argues that plea bargaining can be greatly reduced, or even eliminated, without increasing the number of trials to an unmanageable level, by significantly increasing the prosecutorial screening function. The authors point to a careful review of the experience in New Orleans, where the District Attorney has instituted just such a policy, as proof that it can be done. They proclaim that we have missed the point, over the years, by perceiving plea bargaining as a tradeoff against trials, and that we can avoid trials without resorting to plea bargaining by adopting aggressive prosecutorial screening.

Coming from a federal background in which intake is traditionally a more discretionary function than is typical of prosecutors' offices without the luxury of limited jurisdiction, I certainly agree with the authors that careful screening of cases to eliminate unrealistic charges is desirable. And I have no quarrel with the authors' impressive demonstration that a policy that emphasizes such screening will reduce the need for further charge reductions as part of a plea bargaining process.


Criminal Law | Criminal Procedure | Law