Whenever models of criminal defense are discussed it seems inevitable that plea bargaining’ will occupy center stage. The section of this conference that was devoted to rethinking the way in which mass justice might be fashioned anew proved to be no exception. Some speakers saw plea bargaining as an unmitigated evil. Some saw it as unavoidable, if imperfect. Others regarded it as laudable and were convinced that it brought various benefits to both the individual defendant and the criminal justice system in general. Critics divided on whether bench trials would be a marked improvement. Its sup-porters were unclear as to what role, if any, bench and jury trials should playin deciding issues of guilt and innocence.
There is a great danger that this debate will, if it has not done so already, get locked into false dichotomies. Failure to deal with deep, structural issues will ultimately doom any attempt to effect permanent and beneficial change in the system for providing justice for the poor. Therefore, I will first seek to identify some major contradictions underlying the demand for more trials in place of plea bargaining, and address some problems that are intrinsic to the models being advanced. I will then suggest ways in which the debate might be redefined to permit the analysis that these models demand.
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