Search Mediators Near You:

Mandatory Minimums and Plea Bargaining

Indisputably

Scott Hechinger, attorney and policy director for the Brooklyn Defender Services, has a fascinating op-ed in today’s New York Times, calling for the end of mandatory minimums. He argues that one of the problems with mandatory minimums is that they make police misconduct more difficult to manage.

From the perspective of negotiation, mandatory minimums represent a “credible threat” that prosecutors can use to convince a defendant to take a plea deal. One possible upside of mandatory minimums is that they remove some discretion from prosecutors (and judges) and create more “knowns” in a process that is largely opaque. But this loss of discretion arguably makes bargaining power even more disparate in favor of the prosecution, which can use the minimums as strong negative leverage in the negotiation. This leverage, in addition to the prosecution’s already large number of persuasive tools (e.g., exploding offers, adding enhancements and charges, etc.), helps explain why even innocent people might choose to take a plea.

Hechinger takes this analysis a step further, pointing out that mandatory minimums in the plea bargaining context make possible continued abuses on the part of police. Most people plead guilty (95% of all convictions are from guilty pleas). Once people have pled guilty, they can no longer argue that the police acted in violation of their Constitutional rights. In other words, the guilty plea serves to insulate bad cops from being held accountable for their misconduct. And because mandatory minimums make guilty pleas easier to get, they likewise make police misconduct easier for the criminal justice system to ignore.

Related to all this, I received a notice from Carolina Academic Press yesterday stating that Andrea and Cynthia’s book, Negotiating Crime, is coming out this October! Not a moment too soon.

                        author

Jen Reynolds

Jen Reynolds is an expert in the area of dispute resolution. Professor Reynolds received her law degree cum laude from Harvard Law School, a master's degree in English from the University of Texas at Austin, and a bachelor's degree from the University of Chicago. While at Harvard, Professor Reynolds served… MORE >

Featured Mediators

ad
View all

Read these next

Category

Process Options for Workplace Conflict Management

A variety of options are available to deal with workplace conflict. It is worth noting that each of the approaches is suitable in circumstances, and that the ideal is a...

By John Ford
Category

Have You Got What it Takes to be a Mediator?

CMP Resolution Blog by Lesley Allport and Katherine Graham.I’ve always been intrigued about what it’s like to be someone else. We’re so isolated in our own thoughts and feelings, we...

By Katherine Graham
Category

There’s Nothing Weak About an Apology

Originally printed in The Scotsman, Dec 12, 2013.The cricketer Jonathan Trott’s decision to leave the England Ashes cricket touring party due to a stress-related illness has been widely covered, with...

By John Sturrock

Find a Mediator

X
X
X