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In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different ways by putting students in roles that demand that they go beyond their own views and that they put themselves in the shoes of others. I wanted an exercise that would help students to discuss police reform, police funding, and the issues of race that are wrapped up in these topics in a different way. In this short essay, I will explain the simulation, how I have used it in class, how it can be used to stimulate discussion around police reform, and some of the lessons I have learned in terms of how to conduct and organize this simulation.

We will begin with a discussion about how the hybrid warfare context is different from other conflict contexts. We will describe some complexity aspects that make hybrid warfare challenging to negotiators. We will then discuss whether classical negotiation theory prescriptions apply to a hybrid warfare context, especially regarding interests. We will argue that these prescriptions related to classical negotiations are unlikely to work in this context. We will focus our analysis on a subset of hybrid warfare attacks, consisting of short-term, time-sensitive, high-risk crises, where negotiations are possible and necessary, such as ransom demands, rather than on hybrid warfare situations which state actors, diplomats, or security professionals are called to manage.5 We will explore how negotiators can better deal with such negotiable crises. We note that such events are likely part of a broader hybrid warfare strategy, and therefore their negotiated conclusion is not the same as the end of hybrid warfare hostilities. Nevertheless, the costs and risks to human life make engagement necessary. We will conclude with suggestions about how negotiators might handle such hybrid warfare crisis situations and that most classical interest-based advice does not help. We hope that our thoughts on how individual negotiators can approach hybrid warfare will contribute to a growing understanding of how to defend our interests in this complex environment.

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all the key players in decision-making. This Article suggests that the criminal courts would have been better able to manage the decision-making process if they had been using Dispute System Design (DSD). DSD is a collaborative, inclusive process that would have given the courts an established process for decision making which could have assisted criminal courts to better adapt to new and changing circumstances and to keep a focus on justice in the decision-making process. This Article argues that the use of Continuity of Operation Plans (“COOP”), as a planning tool, may have reinforced the lack of collaboration in federal and state courts, and reinforced the failure to consider the impact that operational changes may have had on justice. This article gives examples of a variety of changes that the criminal courts adopted to conduct necessary court processes and questions whether the process for decision-making negatively impacted the system’s ability to adapt to the changes COVID-19 demanded. Finally, this Article offers lessons that courts can use from this unparalleled time. This Article proposes that criminal courts adopt Dispute System Design processes as a regular part of their planning which would facilitate inclusive justice focused decision-making in future crises that will undoubtedly also require operational changes.

Negotiating Crime: Plea Bargaining, Problem Solving, and Dispute Resolution in the Criminal Context is the first textbook of its kind that covers all of the processes through which criminal cases are resolved in the United States beyond trials. Negotiating Crime brings together criminal procedure, current policy debates, and dispute resolution concepts to examine the practice of criminal law in the 21st century. The first half of the book is devoted to plea bargaining, first covering the basic caselaw, practice, policy concerns, and reform proposals. In addition, this section explains negotiation theory and applies it to the practice of plea bargaining. The second half of the book covers problem-solving and therapeutic justice courts, including drug courts and mental health courts, restorative justice, and juvenile justice.

Imagine a negotiation that will decide where you live, where you might work, whether you will walk free or be imprisoned for many years, and whether you will be branded a criminal. Those are just some of the stakes for defendants during the average plea bargain negotiation. In the United States, well over 90% of those convicted of criminal offenses are convicted through plea bargaining. Plea bargaining, therefore, is the predominate process through which criminal cases are resolved. Plea bargaining is also an example of a negotiation with constraints, as each of the parties in the negotiation is constrained by a number of factors, including the existing law and extreme power imbalances. However, within these constraints, skilled negotiators can accomplish creative results, and plea bargaining itself has enabled the criminal justice system in the United States to experiment with new and innovative approaches to rehabilitation and punishment. This chapter will discuss how the players in the criminal justice system use strong negotiation skills to their advantage, including the ability to find common underlying interests. This chapter will conclude that there are lessons from plea bargaining that are useful examples of what might be possible when negotiating in other highly constrained and restrictive environments.

This symposium article responds to the question, what's left of the law in the wake of ADR? The article addresses this question in the context of the criminal justice system in the United States. As with civil cases, few criminal cases go to trial. Negotiated agreements through plea bargaining have been the predominate form of case resolution since at least the mid-twentieth century. Plea bargaining, as with other forms of alternative dispute resolution, is an informal process that operates largely outside the formal legal system. Plea bargains are rarely negotiated on the record in open court. Instead, they are usually negotiated in private between the defense and the prosecution and only announced in open court and on the record once the deal is final and agreed to by all the parties. Does this mean the law is absent in the process? And, does plea bargaining work to undermine the formal criminal codes in the United States? The simple answer is that the formal criminal law provides the framework for how plea bargaining works and also acts as a substantial impediment to serious plea bargaining reform, an impediment that is often not recognized as scholars and practitioners focus on the fact that the plea bargaining process itself operates with few rules and constraints.Much of the most current scholarship on plea bargaining uses recent Supreme Court cases, most notably Lafler v. Cooper and Missouri v. Frye, to recommend further reforms to plea bargaining. However, Padilla, Lafler, and Frye, were all cases in which the Court looked only at the question of whether there was competent assistance of counsel during the client-counseling phase of plea bargaining. The narrow focus of the Court in these cases has meant that many commentators and scholars have been similarly focused on the defense lawyer role in plea bargaining or how to provide better defense services. Some scholars have focused more generally on the need to reform plea bargaining by adopting more procedural rules. The current wave of scholarship often fails to recognize the importance of also reforming the substantive criminal law as a key component to meaningful plea bargaining reform. This is due, in part, to a failure by many critics and commentators to more fully examine bargaining behavior during plea negotiations and to their underlying assumption that plea bargaining is a process that exists outside the law instead of a process that is defined by the existing law.This article will begin, in Section II, with a brief explanation of the few rules that regulate the plea bargaining process. Section III will examine how plea bargaining works, focusing on how the substantive criminal law impacts bargaining behavior. Section IV will discuss the concern that plea bargaining is often overly coercive and how the substantive criminal law contributes to the coercive atmosphere. Section V will consider the classic article, The Shadow of the Law: The Case of Divorce and examine whether plea bargaining happens in the shadow of the law. This article will use the shadow of the law concept and build off the analysis from previous articles arguing that while plea bargaining is highly complex, it is time to reexamine how the substantive criminal law impacts plea bargaining behavior and the importance of substantive criminal law reform as part of the overall reform of the plea bargaining process. Section VI will propose that plea bargaining reform efforts should include efforts to reform the underlying criminal law using examples from California’s recent changes in the law to explore the kinds off substantive criminal law reform that might contribute to plea bargaining reform.

Criminal justice systems around the world face overwhelming caseloads and ever-increasing pressure to handle more. This pressure can be even more serious in post-conflict countries that face additional problems such as limited resources and fragile political environments. In overloaded criminal justice systems it may be difficult, if not impossible, to hold trials for every accused person in a timely way. As a result, countries are increasingly looking to alternative processes to handle criminal cases beyond traditional formal trials. Plea bargaining is frequently considered as a possible solution to problems of case backlogs, long periods of pretrial detention, and to help address other serious human rights abuses resulting from a poorly functioning criminal justice system. Plea bargaining may help to alleviate some of these problems. However, in countries that have not previously used plea bargains, this kind of reform is a serious change in the legal system and should be carefully considered in the overall context of the existing criminal justice system. To aid post-conflict countries that are considering reforming their criminal procedure to allow for shortened processes, the memo will (1) define plea bargaining and another commonly used shortened process, abbreviated trials (2) explain the advantages of plea bargaining (3) discuss the disadvantages of plea bargaining including examples of unintended negative consequences of introducing plea bargaining (4) discuss best practices in the legislative drafting process, including the need for thorough assessment before engaging in legislative reform and specific legislative provisions drafters should consider in the legislative drafting phase (5) this memorandum will conclude with a discussion of the importance of monitoring plea bargaining after adoption which may lead to possible further legislative reforms adjusting the law to respond to concerns arising from how plea bargaining is working in practice.

In the 2012 companion cases of Lafler v. Cooper and Missouri v. Frye, the United States Supreme Court held that there is a right to effective assistance of counsel during plea bargaining, even when a defendant later loses at trial. Legal commentators suggested the cases were "the single greatest revolution in the criminal justice process since Gideon v. Wainwright," that the cases will have a "significant effect,"' and that they were "the term's decisions with the greatest everyday impact on the criminal justice system." But, will things really change for defendants in the wake of Lafler and Frye? Is it realistic to expect these two decisions to mark the beginning of serious or fundamental changes in plea bargaining? This Article will explain why these cases are unlikely to create meaningful change in how plea bargaining works because they focus on one narrow issue in the context of plea bargaining: single instances of bad lawyering. These cases do not address the larger systemic issues that create serious concerns for defendants in plea bargaining. This Article concludes that Lafler and Frye will have a limited impact because they fail to address these larger issues. Section I of this Article discusses the basic legal framework for plea bargaining in the United States, arguing that the Supreme Court has not touched basic issues that have serious implications for fairness to defendants in plea bargaining. Section II discusses the Lafler and Frye decisions and the criticism that they will fail to bring far-reaching change due to the Court's limited focus on competent assistance of counsel. Section III examines the Indigent Defense Structures and Prosecutorial Power Structures left untouched by Lafler and Frye, which continue to create serious problems for defendants caught in the criminal justice system. Section IV explores the reasons for plea bargaining in the criminal justice system to understand why it may be so difficult for the Court to address larger, structural problems. Section V analyzes plea bargaining as a form of negotiation. This section considers the negotiation environment, and explains why defendants experience problems in plea bargaining due to its often highly adversarial nature, the serious power imbalances, the problem of innocent defendants pleading guilty, and the trial penalty. As this section discusses, plea bargaining is an informal dispute resolution process that can, at best, reflect the larger system within which it operates) Finally, Section VI concludes that Lafler and Frye are unlikely to lead to meaningful change in the Indigent Defense Structures or Prosecutorial Power Structures, but will possibly make some limited changes within the Legal Framework Structures due to their focus on competent assistance of counsel issues. Although Lafler and Frye may help bring some definition to the most extreme bad conduct of lawyers, these cases, and the cases that are most likely to reach the Court in their wake, are not positioned to make systemic changes in the key areas of Indigent Defense Structures and Prosecutorial Power Structures. Instead, they will continue to focus on plea bargaining in the context of individualized cases, but not address the larger structural problems.

Newspaper articles and constitutional scholars have called the recent U.S. Supreme Court cases of Missouri v. Frye and Lafler v. Cooper “landmark” and “game-changing” as the cases held that defendants have a right to competent assistance of counsel during plea bargaining. Beyond the constitutional and appellate court implications, will these cases make a difference in the day-to-day practice of plea bargaining? My first reaction, as a former Deputy Public Defender in Los Angeles was to scoff and say, “no way!” Any competent defense lawyer knows better than to do as Frye’s lawyer and fail to convey an offer, which is a basic ethical duty of all lawyers. Likewise, every first-year law student should understand how wrong Lafler’s lawyer was to advise his client that the prosecutor would not be able to prove an attempted murder charge because the four shots he fired landed below the victim’s waist and not above. However, on further reflection, I think these cases may lead to some changes in plea bargaining practice, in large part due to how judges and prosecutors are reacting.