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Copyright (c) 2001 Tulane University
Tulane Law Review

ARTICLE: Ad Hoc Plea Bargaining

February, 2001

Tulane Law Review

75 Tul. L. Rev. 695


Joseph A. Colquitt*


Every two seconds during a typical workday, a criminal case is disposed of in an American courtroom by way of a guilty or nolo contendere plea. 1 Additionally, many other cases are dismissed. 2 Add in the millions of cases handled by county and municipal courts outside the state systems, and we are down to milliseconds. Most of the pleas and many of the dismissals are the result of plea bargaining, 3 a process which is largely uncontrolled by law. 4 Plea bargaining is generally thought to be a matter of prosecutorial and judicial discretion. The prosecution exercises discretion in making the deal; the judge exercises discretion in accepting or rejecting the bargained plea package. 5

Plea bargaining is a widely accepted practice, but some plea bargaining practices are simply unacceptable. While plea bargaining is a necessary and legitimate method of case disposition, 6 many of the bargains struck are inappropriate, unethical, or even illegal. Judges and prosecutors have used the bargaining process to impose penalties including banishments, 7 coerced charitable contributions, 8 deprivation of rights unrelated to the crime at issue, 9 forced military service, 10 "scarlet letter" punishments, 11 surrender of profits, 12 and compelled waivers of appeal. 13 They also have required pleas to nonexistent, inapplicable, or time-barred crimes. 14 On the other hand, they have awarded benefits, such as agreeing to seal conviction records, 15 in return for pleas of guilty.

This Article argues that the system needs extensive cleansing to extirpate ...
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