Author ORCID Identifier

Kay Levine 0000-0002-9422-232X

Ronald Wright 0009-0005-3591-9521

Marc Miller 0000-0002-5316-8515

Document Type

Article

Publication Date

2019

Keywords

Group plea bargaining, Case negotiation, Audience effect, Case data, Information asymmetry

Abstract

In this Essay, we dive deeper into this final dimension to discuss the influence of professional networks on plea negotiations. In particular, we examine the effects of crowdsourcing tactics in the negotiation setting. We describe, for example, what happens when lawyers bargain in public, benefitting from an audience that provides information about past practices and deals. And then we speculate about what might happen if that audience were instead a widely shared database that documents plea practices in the jurisdiction. We offer a few preliminary thoughts about the potential influence of such techniques, as we are not in a position to measure empirically the actual effects of crowdsourcing (either by audience or by database) on the rate or substance of pleas. Instead, we use anecdotal data to discuss how crowdsourcing techniques might affect party behavior and alter the balance of power among prosecutors, defenders, and judges when it comes to plea deals.

We begin in Part II with a glimpse of crowdsourcing patterns that currently exist: gatherings of defense attorneys and prosecutors who negotiate with each other in the same room at the same time. During our field research, we learned that the participants in one county called their weekly group meeting a “Sharkfest”—the label we use in this Essay for group negotiation sessions generally. The attorneys who attend these meetings discuss their cases within earshot of each other, offering suggestions to their colleagues and rebuttals to their adversaries, even in cases not assigned to them. In some of these settings, the judge is even present, commenting on the viability of the evidence or on the fairness of the prosecutor’s offer. In other settings, the parties know the bench’s preferences well and bargain in light of what they expect the judge to do. In short, some non-negotiators—both judges and other attorneys—can witness and shape the marketplace of plea deals in real time.

After describing the Sharkfest meetings that we learned about in different jurisdictions around the country, we turn in Part III to the central query of this paper: Could the effects of the group negotiation setting be reproduced, institutionalized, and furthered by the creation of a database about plea negotiations and case outcomes?

First Page

653

Publication Title

Texas A&M Law Review

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