Essay

Unbundling Criminal Trial Rights

John Rappaport

Lecturer in Law and Bigelow Teaching Fellow, The University of Chicago Law School

Share The University of Chicago Law Review | Unbundling Criminal Trial Rights on Facebook
Share The University of Chicago Law Review | Unbundling Criminal Trial Rights on Twitter
Share The University of Chicago Law Review | Unbundling Criminal Trial Rights on Email
Share The University of Chicago Law Review | Unbundling Criminal Trial Rights on LinkedIn

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Essay explores what would happen if, once and for all, we eschewed the all-or-nothing framework and actually encouraged these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties might agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Essay takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining may plausibly outweigh the costs.

PDF

TABLE OF CONTENTS

Comment

85.3

Righting Categorical Wrongs: A Holistic Solution to Rule 8(a)’s Same-or-Similar-Character Prong

Matthew Deates

BA 2012, University of Minnesota; JD Candidate 2018, The University of Chicago Law School

I would like to thank Professor Alison Siegler for introducing me to the law on joinder. This Comment would not exist without her guidance and support. I would also like to thank the talented editors of the Law Review for their helpful comments and suggestions.

A criminal defendant is charged with wire fraud in violation of 18 USC § 1343. As he and his defense attorney prepare for trial, the US Attorney’s Office notifies him that there is reason to believe he has previously committed bankruptcy fraud in violation of 18 USC § 152.

Criminal Law

Article

85.3

Rethinking Family-Court Prosecutors: Elected and Agency Prosecutors and Prosecutorial Discretion in Juvenile Delinquency and Child Protection Cases

Josh Gupta-Kagan

Assistant Professor of Law, University of South Carolina School of Law

The author would like to thank Albertina Antognini, Annette Appell, Elizabeth Chambliss, Martin Guggenheim, Avni Gupta-Kagan, Clare Huntington, Cortney Lollar, Adrian Smith, Robin Walker-Sterling, and participants in a faculty workshop at the University of Kentucky College of Law and Duke Law School’s 2015 conference on civil rights, “The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America,” for thoughtful comments on earlier drafts. The author would like to thank Joni Gerrity for excellent research assistance.

The law and the academy have long recognized criminal prosecutors’ immense power, especially the power to determine which cases to prosecute and which not to. Less attention has been focused on related issues in juvenile delinquency and child protection cases litigated in state family courts.

Children and Families Criminal Law

Article

85.3

Defining Flight Risk

Lauryn P. Gouldin

Associate Professor, Syracuse University College of Law; JD, New York University School of Law; AB, Princeton University

I thank the Criminal Justice Section of the Association of American Law Schools for honoring this work as the First Runner-Up in the 2017 Junior Scholars Paper Competition. For their thoughtful comments and feedback, I am grateful to Laura Appleman, Shima Baradaran Baughman, Todd Berger, Keith Bybee, Michael Cahill, Nicolas Commandeur, Jessica Eaglin, Nicole Smith Futrell, Cynthia Godsoe, Russell Gold, Nina Kohn, Corinna Lain, Kate Levine, Sandy Mayson, Janet Moore, Lauren Ouziel, Ellen Podgor, Anna Roberts, Laurent Sacharoff, Tim Schnacke, Jocelyn Simonson, Cora True-Frost, and Sam Wiseman. Thank you also to the participants in the NYC Markelloquium at Brooklyn Law School; the participants in the 2016 AALS Hot Topics program, “Responding to the Money Bail Crisis”; the participants in CrimFest 2016 at Cardozo Law School; and the participants in the Junior Scholars Criminal Justice Roundtable at Brooklyn Law School and St. John’s University School of Law. With much appreciation also to Hillary Anderson, S. Alex Berlucchi, Jordan Charnetsky, Irem Karacal, David Katz, Amy Rhinehardt, and Erin Shea for outstanding research assistance. I am also indebted to Kyle Jorstad, Pat Ward, Carly Gibbs, John McAdams, Eian Katz, and the other editors of The University of Chicago Law Review for their insightful suggestions.

The number of low-risk defendants who spend time in pretrial detention in this country is staggering: “Every year, more than 11 million people move through America’s 3,100 local jails, many on low-level, non-violent misdemeanors.”

Criminal Defense