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From my understanding, plea bargaining is the process where a defendant can plead guilty to a reduced charge. This means there is no trial, but a lesser sentence. I also know of fact bargaining - where a defendant says a certain fact is true in exchange for the prosecutor not using other facts in the case.

From this definition, I assumed that abolishing plea bargaining meant that defendants could no longer plead guilty at all.

However, then I read the following quote from a book:

"The evaluation also revealed that, contrary to predictions that defendants would refuse to plead guilty and that the Alaska criminal justice system would grind to a halt, guilty pleas did not decrease and trials did not increase dramatically".

This is in reference to the Alaska ban on plea bargaining. Here's the full paragraph for added context:

Image: https://imgur.com/a/9tYwT

Text (OCR):

Given the controversy surrounding plea bargaining. it is not surprising that a number of jurisdictions have attempted to restrict, or even to eliminate. it. In 1975, for example, the Alaska attorney general issued an order that banned all forms of plea bargaining. Under this policy. prosecutors could not reduce charges or dismiss counts in exchange for guilty pleas; they also were not supposed to ask the court to impose a particular sentence if the defendant agreed to plead guilty. The attorney general imposed the ban on plea bargaining in an effort to increase convictions and restore public confidence in the justice system (Carns 8c Kruse, 1992). An evaluation of the impact of the ban found that explicit sentence bargaining disappeared and that charge bargaining continued for a few months and then “dried up" (Rubinstein 8: White. 1979). The evaluation also revealed that, contrary to predictions that defendants would refuse to plead guilty and that the Alaska criminal justice system would therefore grind to a halt, guilty pleas did not decrease and trials did not increase dramatically. Although the authors of the study concluded that the Alaska experience showed that “the incidence of plea bargaining can be substantially reduced without wrecking a criminal justice system," they also cautioned that the results of the Alaska reform could not necessarily be generalized to other. larger jurisdictions (Rubinstein 8: White, 1979, p. 382).

My question is, if there was a ban on plea bargaining in Alaska, then how could defendants still plead guilty, and why would they choose to do so? How could charge and sentence bargaining "dry up", but guilty pleas still exist?

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The 1975 ban by the attorney general prohibited prosecutors from offering to reduce charges, dismiss counts, or request a particular sentence in exchange for a guilty plea. (Ad hoc exceptions were allowed, initially only by the AG, later by the head of each local office. For a while, there was also judicial bargaining). The AG's ban was on quid pro quo arrangements by his office, and the AG has absolutely no power over the plea by an accused, so that is how an accused could still plead guilty. The following quote is from the first page of Rubenstein & White:

On July 3, 1975, the Attorney General of Alaska, Avrum Gross, issued written instructions forbidding all district attorneys and their assistants from engaging in plea bargaining. This prohibition extended to all felony and all misdemeanor prosecutions filed as of August 15. They could not offer to reduce charges or dismiss counts in multiple-count complaints, informations, or indictments as a quid pro quo for guilty pleas. Nor could they request the court to impose any stated sentence; they could only recite the facts.

I can't locate a copy of the actual memo, but also see this quote, esp. "...negotiations with defendants designed to arrive at an agreement for entry of a plea of guilty in return for a particular sentence...".

A guilty plea is much cheaper for a defendant than paying an attorney and getting convicted, so if you're actually guilty and the evidence is good, it could be a wiser move to plead guilty. There is little reason to engage in a futile act. It apparently also caused a change in the prosecutorial standard for charging, from probable cause to beyond a reasonable doubt – consequently, the chances that the accused is actually guilty goes up. The re-evaluation study also found evidence some evidence that sentencing was lighter in the case of a guilty plea, and it would be sufficient for the accused to believe that he could get a lighter sentence as a reward for a guilty plea to nudge a person in the direction of a guilty plea.

  • Do you have any source to back up the claim that the accused could still plead guilty, because the ban was only on quid pro quo arrangements? I skimmed through the article you provided, but I couldn't find where it said that. It's not that I'm doubting you, I just need a source so others will believe me. – Roymunson Feb 4 '18 at 18:00
  • See p. 32 of that article, and the opening of Rubenstein & White if you can access it. I'll add a quote. – user6726 Feb 4 '18 at 18:16

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