THE UNNECESSARY EVIL OF PLEA BARGAINING: AN UNCONSTITUTIONAL CONDITIONS PROBLEM AND A NOT-SO-LEAST RESTRICTIVE ALTERNATIVE

TINA WAN *

I.

INTRODUCTION

The Bill of Rights protects some of our most fundamental liberties, including our Fifth Amendment privilege against self-incrimination and our Sixth Amendment rights to jury trial, to confront adverse witnesses and to compulsory process for obtaining favorable witnesses. 1 As Justice Brennan once wrote, the Framers did not intend to create rights; [r]ather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing. 2 Because many of these rights and liberties have each been deemed to be a fundamental, intrinsic aspect of due process, they have been incorporated into the Fourteenth Amendment to apply to the states as well. 3 However, despite such supposed protections, most of those charged with crimes do not get to exercise these rights. 4 Almost every year, more than 95% of those charged

* J.D. Candidate, University of Southern California Gould School of Law, 2008; B.A., Criminology, Law & Society, University of California, Irvine, 2005. Special thanks to my note advisor, Professor Michael Shapiro, for his guidance and his insightful comments, and to the RLSJ Board and Staff for their hard work in the editing and publication process. 1 U.S. CONST. amends. V, VI. 2 United States v. Verdugo-Urquidez, 494 U.S. 259, 288 (1990) (Brennan, J., dissenting). 3 CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 2 (4th ed. 2000); see Duncan v. Louisiana, 391 U.S. 145, 148 (1968). 4 Malvina Halberstam, Towards Neutral Principles in the Administration of Criminal Justice: A Critique of Supreme Court Decisions Sanctioning the Plea Bargaining Process, 73 J. CRIM. L. & CRIMINOLOGY 1, 2 (1982).

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