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To understand what is and is not wrong with plea bargaining, one must understand the relationship of bargains to trials. Unsurprisingly, we disagree with much of what Judge Frank Easterbrook and Professor Stephen Schulhofer say about that relationship. Most of those disagreements need not be rehearsed here; readers attentive enough to wade through their essays and ours will pick up the key points readily enough. But there is one point where the dispute is at once sharp and hidden. It has to do with the fact that both trials and bargains are flawed.

That fact might seem obvious, but the literature on this subject persistently manages to ignore it. And while there are many good insights in Easterbrook's and Schulhofer's comments, we think they both fall prey to the tendency to imagine perfection in one part of the system or the other. That tendency inevitably leads to one of two conclusions – plea bargaining is just fine the way it is, or it ought to be junked. These are, of course, the conclusions that Easterbrook and Schulhofer reach; indeed, they are the conclusions that nearly all scholarship on plea bargaining reaches. Notwithstanding their popularity, we think both polar positions are wrong.


Courts | Criminal Law | Criminal Procedure | Law