Bench Trials, Adversariness, and Plea Bargaining: A Comment on Schulhofers’s Plan


The Philadelphia court is a distinctive, if not unique, example of a large urban criminal justice system which apparently operates with a minimum of plea bargaining – certainly much less than in other courts. However, one reason for Philadelphia’s success is the incentive defendants have to waive their right to a jury trial. Because the city’s hanging judges are primarily placed injury parts rather than trial waiver parts,1 defendants readily waive jury trials and accept brief bench trials and non bargained guilty pleas. Notwithstanding this, I’m impressed with Schulhofer’s findings and argument Philadelphia’s system truly is different, and Schulhofer’s use of it as a general model is creative, thoughtful, and pragmatic.

I would like to put Schulhofer’s arguments and aspirations in a broader context and relate them to some themes addressed earlier in this Colloquium.In so doing, I want to point out the very real merits of his proposals as well as raise some serious reservations about them.

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