More than 95 percent of all criminal convictions are the result of plea bargaining, a process in which a defendant pleads guilty in exchange for some sort of favorable treatment from the prosecutor. Pleading guilty leads to conviction and sentencing as well as possible probationary requirements and “collateral consequences,” such as losing eligibility for certain jobs, housing, or social services, that defendants must grapple with after completing their sentences.
Given how common the practice of plea bargaining has become and keeping in mind the serious and sometimes lifelong consequences that flow from guilty pleas, one would think that law schools would train lawyers to participate in plea bargaining. Yet most criminal attorneys learn to plea bargain on the job.
Is this really the best way for plea bargaining practice to evolve? I sat down recently with Heather Kulp, the ADR Coordinator for the New Hampshire judicial branch, to talk about this question. Before working with the judicial branch, Heather was a Fellow and Clinical Instructor at the Harvard Negotiation and Mediation Clinical Project and a Lecturer on Law at Harvard Law School, teaching classes in negotiation and facilitation while working with clinical students on dispute systems design. Her experience developing plea bargaining training while at Harvard and then again in New Hampshire has given her a unique perspective into the challenges and possibilities around teaching plea bargaining effectively. What follows is an edited version of our conversation.