Web20/10/ · That means the impact could spread far beyond the agency’s payday lending rule. "The holding will call into question many other regulations that protect consumers with respect to credit cards, bank accounts, mortgage loans, debt collection, credit reports, and identity theft," tweeted Chris Peterson, a former enforcement attorney at the CFPB who WebGet 24⁄7 customer support help when you place a homework help service order with us. We will guide you on how to place your essay help, proofreading and editing your draft – fixing the grammar, spelling, or formatting of your paper easily and cheaply WebDeutsch (de) Italiano (it) Беларуская (be) Log in. No account? Create an account. Remember me. Forgot password Log in Log in. QR code. No account? Create an account By logging in to LiveJournal using a third-party service you accept LiveJournal's User agreement. Creating a New Journal Username: Your name on LiveJournal Web19/10/ · Microsoft’s Activision Blizzard deal is key to the company’s mobile gaming efforts. Microsoft is quietly building a mobile Xbox store that will rely on Activision and King games Web12/10/ · Microsoft has responded to a list of concerns regarding its ongoing $68bn attempt to buy Activision Blizzard, as raised by the UK's Competition and Markets Authority (CMA), and come up with an ... read more
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Financial technology is breaking down barriers to financial services and delivering value to consumers, small businesses, and the economy. Fintech puts American consumers at the center of their finances and helps them manage their money responsibly. From payment apps to budgeting and investing tools and alternative credit options, fintech makes it easier for consumers to pay for their purchases and build better financial habits.
Fintech also arms small businesses with the financial tools for success, including low-cost banking services, digital accounting services, and expanded access to capital. We advocate for modernized financial policies and regulations that allow fintech innovation to drive competition in the economy and expand consumer choice. Spots are still available for this hybrid event, and you can RSVP here to save your seat.
Join us as we discuss how to shape the future of finance. In its broadest sense, Open Banking has created a secure and connected ecosystem that has led to an explosion of new and innovative solutions that benefit the customer, rapidly revolutionizing not just the banking industry but the way all companies do business.
Target benefits are delivered through speed, transparency, and security, and their impact can be seen across a diverse range of use cases. Sharing financial data across providers can enable a customer individual or business to have real-time access to multiple bank accounts across multiple institutions all in one platform, saving time and helping consumers get a more accurate picture of their own finances before taking on debt, providing a more reliable indication than most lending guidelines currently do.
Companies can also create carefully refined marketing profiles and therefore, finely tune their services to the specific need. Open Banking platforms like Klarna Kosma also provide a unique opportunity for businesses to overlay additional tools that add real value for users and deepen their customer relationships.
The increased transparency brought about by Open Banking brings a vast array of additional benefits, such as helping fraud detection companies better monitor customer accounts and identify problems much earlier.
The list of new value-add solutions continues to grow. The speed of business has never been faster than it is today. For small business owners, time is at a premium as they are wearing multiple hats every day. Macroeconomic challenges like inflation and supply chain issues are making successful money and cash flow management even more challenging. This presents a tremendous opportunity that innovation in fintech can solve by speeding up money movement, increasing access to capital, and making it easier to manage business operations in a central place.
Fintech offers innovative products and services where outdated practices and processes offer limited options. For example, fintech is enabling increased access to capital for business owners from diverse and varying backgrounds by leveraging alternative data to evaluate creditworthiness and risk models. This can positively impact all types of business owners, but especially those underserved by traditional financial service models.
When we look across the Intuit QuickBooks platform and the overall fintech ecosystem, we see a variety of innovations fueled by AI and data science that are helping small businesses succeed. By efficiently embedding and connecting financial services like banking, payments, and lending to help small businesses, we can reinvent how SMBs get paid and enable greater access to the vital funds they need at critical points in their journey.
Overall, we see fintech as empowering people who have been left behind by antiquated financial systems, giving them real-time insights, tips, and tools they need to turn their financial dreams into a reality. Innovations in payments and financial technologies have helped transform daily life for millions of people. People who are unbanked often rely on more expensive alternative financial products AFPs such as payday loans, money orders, and other expensive credit facilities that typically charge higher fees and interest rates, making it more likely that people have to dip into their savings to stay afloat.
A few examples include:. Mobile wallets - The unbanked may not have traditional bank accounts but can have verified mobile wallet accounts for shopping and bill payments. Their mobile wallet identity can be used to open a virtual bank account for secure and convenient online banking.
Minimal to no-fee banking services - Fintech companies typically have much lower acquisition and operating costs than traditional financial institutions. They are then able to pass on these savings in the form of no-fee or no-minimum-balance products to their customers. This enables immigrants and other populations that may be underbanked to move up the credit lifecycle to get additional forms of credit such as auto, home and education loans, etc.
Entrepreneurs from every background, in every part of the world, should be empowered to start and scale global businesses. Most businesses still face daunting challenges with very basic matters. These are still very manually intensive processes, and they are barriers to entrepreneurship in the form of paperwork, PDFs, faxes, and forms.
Stripe is working to solve these rather mundane and boring challenges, almost always with an application programming interface that simplifies complex processes into a few clicks. Stripe powers nearly half a million businesses in rural America. The internet economy is just beginning to make a real difference for businesses of all sizes in all kinds of places.
We are excited about this future. The way we make decisions on credit should be fair and inclusive and done in a way that takes into account a greater picture of a person.
Lenders can better serve their borrowers with more data and better math. Zest AI has successfully built a compliant, consistent, and equitable AI-automated underwriting technology that lenders can utilize to help make their credit decisions. While artificial intelligence AI systems have been a tool historically used by sophisticated investors to maximize their returns, newer and more advanced AI systems will be the key innovation to democratize access to financial systems in the future.
D espite privacy, ethics, and bias issues that remain to be resolved with AI systems, the good news is that as large r datasets become progressively easier to interconnect, AI and related natural language processing NLP technology innovations are increasingly able to equalize access. T he even better news is that this democratization is taking multiple forms.
AI can be used to provide risk assessments necessary to bank those under-served or denied access. AI systems can also retrieve troves of data not used in traditional credit reports, including personal cash flow, payment applications usage, on-time utility payments, and other data buried within large datasets, to create fair and more accurate risk assessments essential to obtain credit and other financial services.
By expanding credit availability to historically underserved communities, AI enables them to gain credit and build wealth. Additionally, personalized portfolio management will become available to more people with the implementation and advancement of AI.
Sophisticated financial advice and routine oversight, typically reserved for traditional investors, will allow individuals, including marginalized and low-income people, to maximize the value of their financial portfolios. Moreover, when coupled with NLP technologies, even greater democratization can result as inexperienced investors can interact with AI systems in plain English, while providing an easier interface to financial markets than existing execution tools.
Open finance technology enables millions of people to use the apps and services that they rely on to manage their financial lives — from overdraft protection, to money management, investing for retirement, or building credit.
More than 8 in 10 Americans are now using digital finance tools powered by open finance. This is because consumers see something they like or want — a new choice, more options, or lower costs. What is open finance? At its core, it is about putting consumers in control of their own data and allowing them to use it to get a better deal.
When people can easily switch to another company and bring their financial history with them, that presents real competition to legacy services and forces everyone to improve, with positive results for consumers. For example, we see the impact this is having on large players being forced to drop overdraft fees or to compete to deliver products consumers want.
We see the benefits of open finance first hand at Plaid, as we support thousands of companies, from the biggest fintechs, to startups, to large and small banks.
All are building products that depend on one thing - consumers' ability to securely share their data to use different services. Open finance has supported more inclusive, competitive financial systems for consumers and small businesses in the U. and across the globe — and there is room to do much more. As an example, the National Consumer Law Consumer recently put out a new report that looked at consumers providing access to their bank account data so their rent payments could inform their mortgage underwriting and help build credit.
This is part of the promise of open finance. At Plaid, we believe a consumer should have a right to their own data, and agency over that data, no matter where it sits. This will be essential to securing benefits of open finance for consumers for many years to come. As AWS preps for its annual re:Invent conference, Adam Selipsky talks product strategy, support for hybrid environments, and the value of the cloud in uncertain economic times.
Donna Goodison dgoodison is Protocol's senior reporter focusing on enterprise infrastructure technology, from the 'Big 3' cloud computing providers to data centers. She previously covered the public cloud at CRN after 15 years as a business reporter for the Boston Herald. AWS is gearing up for re:Invent, its annual cloud computing conference where announcements this year are expected to focus on its end-to-end data strategy and delivering new industry-specific services.
Both prongs of that are important. But cost-cutting is a reality for many customers given the worldwide economic turmoil, and AWS has seen an increase in customers looking to control their cloud spending. By the way, they should be doing that all the time. The motivation's just a little bit higher in the current economic situation. This interview has been edited and condensed for clarity. Besides the sheer growth of AWS, what do you think has changed the most while you were at Tableau? Were you surprised by anything?
The number of customers who are now deeply deployed on AWS, deployed in the cloud, in a way that's fundamental to their business and fundamental to their success surprised me. There was a time years ago where there were not that many enterprise CEOs who were well-versed in the cloud. It's not just about deploying technology. The conversation that I most end up having with CEOs is about organizational transformation.
It is about how they can put data at the center of their decision-making in a way that most organizations have never actually done in their history.
And it's about using the cloud to innovate more quickly and to drive speed into their organizations. Those are cultural characteristics, not technology characteristics, and those have organizational implications about how they organize and what teams they need to have. It turns out that while the technology is sophisticated, deploying the technology is arguably the lesser challenge compared with how do you mold and shape the organization to best take advantage of all the benefits that the cloud is providing.
How has your experience at Tableau affected AWS and how you think about putting your stamp on AWS? I, personally, have just spent almost five years deeply immersed in the world of data and analytics and business intelligence, and hopefully I learned something during that time about those topics. I'm able to bring back a real insider's view, if you will, about where that world is heading — data, analytics, databases, machine learning, and how all those things come together, and how you really need to view what's happening with data as an end-to-end story.
It's not about having a point solution for a database or an analytic service, it's really about understanding the flow of data from when it comes into your organization all the way through the other end, where people are collaborating and sharing and making decisions based on that data. AWS has tremendous resources devoted in all these areas.
Can you talk about the intersection of data and machine learning and how you see that playing out in the next couple of years? What we're seeing is three areas really coming together: You've got databases, analytics capabilities, and machine learning, and it's sort of like a Venn diagram with a partial overlap of those three circles. There are areas of each which are arguably still independent from each other, but there's a very large and a very powerful intersection of the three — to the point where we've actually organized inside of AWS around that and have a single leader for all of those areas to really help bring those together.
There's so much data in the world, and the amount of it continues to explode. We were saying that five years ago, and it's even more true today. The rate of growth is only accelerating. It's a huge opportunity and a huge problem. A lot of people are drowning in their data and don't know how to use it to make decisions. Other organizations have figured out how to use these very powerful technologies to really gain insights rapidly from their data. What we're really trying to do is to look at that end-to-end journey of data and to build really compelling, powerful capabilities and services at each stop in that data journey and then…knit all that together with strong concepts like governance.
By putting good governance in place about who has access to what data and where you want to be careful within those guardrails that you set up, you can then set people free to be creative and to explore all the data that's available to them. AWS has more than services now. Have you hit the peak for that or can you sustain that growth?
We're not done building yet, and I don't know when we ever will be. We continue to both release new services because customers need them and they ask us for them and, at the same time, we've put tremendous effort into adding new capabilities inside of the existing services that we've already built. We don't just build a service and move on. Inside of each of our services — you can pick any example — we're just adding new capabilities all the time.
One of our focuses now is to make sure that we're really helping customers to connect and integrate between our different services. So those kinds of capabilities — both building new services, deepening our feature set within existing services, and integrating across our services — are all really important areas that we'll continue to invest in. Do customers still want those fundamental building blocks and to piece them together themselves, or do they just want AWS to take care of all that?
There's no one-size-fits-all solution to what customers want. It is interesting, and I will say somewhat surprising to me, how much basic capabilities, such as price performance of compute, are still absolutely vital to our customers. But it's absolutely vital. Part of that is because of the size of datasets and because of the machine learning capabilities which are now being created. They require vast amounts of compute, but nobody will be able to do that compute unless we keep dramatically improving the price performance.
We also absolutely have more and more customers who want to interact with AWS at a higher level of abstraction…more at the application layer or broader solutions, and we're putting a lot of energy, a lot of resources, into a number of higher-level solutions.
One of the biggest of those … is Amazon Connect, which is our contact center solution. In minutes or hours or days, you can be up and running with a contact center in the cloud. At the beginning of the pandemic, Barclays … sent all their agents home. In something like 10 days, they got 6, agents up and running on Amazon Connect so they could continue servicing their end customers with customer service. We've built a lot of sophisticated capabilities that are machine learning-based inside of Connect.
Florence, N. Accordingly, these states are distinguished from those that have regularly functioning preliminary hearings insulated from prosecutorial bypass by judicial discretion that is, from model six in Figure Acts , —59 repealing preexisting preliminary-examination provisions of state law ; Ind.
Code §§ to -2 affording only Gerstein -style review ; Me. Close and one Delaware goes to the far extreme of granting prosecutors full and unchecked control over the preliminary-hearing process via an information-bypass rule. Close Finally, at the far other end of the spectrum, one state has flirted with but ultimately rejected a discretionary model in which judges can hold hearings even if an indictment or information has been filed, Maryland has a statute expressly providing for a discretionary approach.
See Md. But a contrary court rule creates an indictment-bypass regime, and the state supreme court has held that the rule takes precedence. State, A. exists a conflict between the statute and the rule.
As the rule was adopted subsequent to the enactment of the statutory provision, the rule prevails. For discussion of the curious-but-common supremacy of court-made rules over legislative statutes, see infra section V. B and note Close and an additional six have gone so far as to guarantee defendants a right to a preliminary hearing as a matter of course.
If, however, such a process is used, the defendant can then challenge any resulting indictment on the papers. See Pa. In Nebraska, an indictment technically preempts a preliminary hearing. Finally, in Oklahoma, the defendant has a right to a preliminary hearing, Okla. Delso, P. Note that Virginia guarantees preliminary hearings by statute, see Va.
Commonwealth, S. Virginia is thus not included among the six hearing-as-of-right states. As this survey of state-by-state approaches makes clear, the structures of pretrial evidentiary review are exceptionally diverse, with preliminary hearings guaranteed in some states, nonexistent in others, and subject to varying modes of prosecutorial bypass in the rest.
Specifically, procedural law determines the robustness of a given preliminary hearing in at least three important ways. Standard of Review. The higher the standard, the more demanding the review—at least in theory. prosecutorial constraint [is] important. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees? Abraham, F. Millette, A. Nature of Evidence. In many states, however, the prosecutor can satisfy her burden of proof at the hearing entirely through hearsay testimony.
Penal Code § b ; Del. Close In such a regime, a single police officer can simply take the stand and summarize the most inculpatory portions of the case file, thus shielding potentially weak witnesses from cross-examination and perhaps sanitizing their accounts in the process. See Donald J. Farole, Jr. Close Other states, however, take steps to restrict such obfuscation: Some give judges discretion to accept or reject hearsay at the hearing; See, e. Code Evid. Close others permit hearsay only in narrowly limited circumstances; See, e.
may be admitted to show the following: 1 the existence or nonexistence of business or medical facts and records, 2 judgments and convictions of courts, 3 ownership of real or personal property, and 4 reports of scientific examinations of evidence by state or federal agencies.
is a child less than 13 years of age, the finding of probable cause. may be based upon hearsay evidence in whole or in part presented at the preliminary examination by means of statements made by [the] child. on a videotape recording or by other means. at a preliminary examination. Close and others ban it altogether. Code Crim.
hear testimony. in accordance with the rules of evidence applicable to criminal trials. Commonwealth, N. Court of Mayes Cty.
Notably, jurisdictions also vary on the extent to which defendants are permitted to present any evidence at a preliminary hearing at all. Compare, e. Pleas Crim. Law § Consequences of Overreaching.
In many jurisdictions those consequences are almost nonexistent, as the prosecutor is free simply to refile the rejected charges, perhaps before a more amenable judge—an approach that leaves her free to overreach again and again, until her charges stick or she gives up. Codified Laws § 23A; Tenn. Rubek, N. Farrad, A. Some states do not permit dismissal even upon an adverse judicial finding, requiring only that the defendant be released from pretrial custody though not from other restraints on his liberty.
upon the preliminary examination the accused has been discharged. the district attorney may, upon affidavit of any person who has knowledge of the commission of [the] offense, and. by leave of the court first had, file an[other] information. Limited Jurisdiction 3. Close while others go so far as to ban such refiling altogether unless the prosecutor can show that she has obtained new evidence that she either did not or could not have obtained the first time around.
Armstrong, U. Some states provide no pretrial evidentiary review at all, others guarantee something approximating a minitrial, and a full assortment of alternatives fall in between.
Unlike factual overreach, legal overreach arises relatively infrequently in criminal prosecutions, for a simple reason: In most jurisdictions, the well-settled substantive criminal law defines liability so expansively that it covers most alleged criminal misconduct many times over, relieving prosecutors of any need to stretch for legally applicable charges.
Jackson, The Federal Prosecutor , 24 J. James M. Close Still, legal overreaching is not a phantom menace, Cf. Close and when it occurs it can offer prosecutors substantial leverage. Consider, for example, our hypothetical armed robbery defendant, who when we first encountered him was facing not only a pile of robbery-like charges theft, assault, brandishing a firearm but also a far more serious charge of kidnapping—premised solely on the allegation that, in the course of the robbery, he told the victim to move a few steps to the left, out from under a streetlamp.
That legal question could well be unresolved in the particular jurisdiction at hand. Melanie A. Prince, Comment, Two Crimes for the Price of One: The Problem with Kidnapping Statutes in Tennessee and Beyond, 76 Tenn. Close And if it is, uncertainty over how courts will resolve the issue creates a now-familiar opportunity for charge bargaining and manipulation: To eliminate the risk of a lengthy kidnapping sentence, the defendant might jump at the chance to plead guilty to a lesser offense—including, perhaps, to armed robbery, the charge the prosecutor likely preferred all along.
Gold et al. This lack of clarity allows prosecutors to push more aggressive legal theories. For other discussions of uncertainty yielding prosecutorial leverage, see supra notes 92—94 and accompanying text discussing discretionary sentencing ; supra notes 98— and accompanying text discussing the inherent uncertainty of jury verdicts.
Close To the extent that undue leverage arising from such uncertainty causes concern, a potential regulatory solution should by now be familiar as well: Resolve the uncertainty up front, by permitting the judge to rule on the legal issue before plea negotiations are over—that is to say, at some point before trial.
supra text accompanying note 94 discussing structured sentencing discretion as a mode of clarifying uncertainty ; supra section III. A discussing pretrial evidentiary review in similar terms. Virginia, U. Close But where constitutional law falls short, subconstitutional law fills the gap, in this instance through a little-studied procedural device known as a motion for summary dismissal. Brenner, Speaking Motions: Recognition of Summary Judgment in Federal Criminal Procedure, F.
For more recent treatments, also focusing solely on the federal rules, see Burnham, supra note , at —49; Gold et al. Close In other words, summary dismissals move the judicial review guaranteed by the Constitution up to a point in the proceedings when such review could actually be useful.
Nabors, 45 F. Close That consistency, however, tells only half the story, for the difficulty defendants typically face when pushing back against legal overreach is not finding a procedural device through which to mount their challenge but rather pinning the prosecutor to a specific legal theory of liability in the first place.
Criminal charging instruments, after all, are much sparser than civil complaints, often alleging little more than the time and place of the offense.
Iqbal, U. Close And while pretrial evidentiary hearings can help determine whether the prosecutor has any factual basis to file a charge, they rarely examine every potential charge the eventual trial could entail, nor do they typically bind the prosecutor to the factual narrative adduced at the hearing.
Miller, Prosecution: The Decision to Charge a Suspect with a Crime 67—68 Frank J. Remington ed. In other words, effective constraints on legal overreach often require some regulatory mechanism to force prosecutors to specify their legal theory early on—which subconstitutional procedural law affords by way of a motion for a bill of particulars.
This choice, however, will be forced only if the governing procedural law requires the prosecutor to issue a bill of particulars—and here again, states vary in their approaches. Callahan, 18 F. Close Of course, regulatory constraints grounded in discretion will turn on how judges use that discretion. supra text accompanying notes 50—51 discussing equitable-failsafe severance ; supra text accompanying notes 90—92 discussing discretionary sentencing ; supra text accompanying note discussing discretionary preliminary hearings.
Close But as the chart above reflects, states can also adopt more categorical approaches, which some do—in both directions. Specifically, ten states have eliminated the bill of particulars altogether, leaving prosecutors free either to stipulate to facts that support pretrial adjudication of legal issues or to evade such review until trial. Prosecutors may sometimes want to facilitate a pretrial legal ruling on their theory of a case in order to confirm its validity prior to committing resources to a trial, a route they may be particularly likely to pursue if the case at hand is intended as a test vehicle for a novel legal theory.
Close In these states, as the discussion above makes clear, the subconstitutional procedural law of summary dismissal and bills of particulars creates a genuine mechanism for checking legal overreach. For critics of American plea bargaining, the problem of equitable overreach captures perhaps the core concern with plea bargaining more generally: Defendants are sometimes threatened with charges that are simply more serious than their alleged conduct seems to deserve.
Close Take our hypothetical defendant: Even if one accepts that his alleged conduct technically meets the legal elements of a kidnapping, one might appropriately ask whether threatening him with such a charge—and with the decades of imprisonment it could entail—is fair, just, and equitable under the circumstances. Pfaff, Locked In, supra note 17, at — stressing the need to reevaluate societal approaches to punishing violent crime.
Rules alone, untempered by discretion, cannot cope with the complexities of modern government and of modern justice. prosecutors may not merely rely on the fact that the legislature has passed a crime to justify their charging decisions. They also have to make a normative decision on whether the conduct in question is worth prosecuting. at ; see also Josh Bowers, The Normative Case for Normative Grand Juries, 47 Wake Forest L. But see supra note citing and discussing extensive literature on the shortcomings of grand jury review.
Facility v. Rockefeller, F. Cox, F. But while this division of institutional responsibilities is dictated by Supreme Court doctrine, it is not a command of natural law—nor does it bind the states, which are free to assign their courts and their prosecutors shared responsibility when it comes to ensuring that criminal charges are not only factually and legally viable, but also fair and just.
Dreyer v. Illinois, U. belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the State.
Close And indeed, one-third of the states have done just that, enacting through their subconstitutional law a set of procedural mechanisms that authorize courts to dismiss charges prior to trial purely on equitable grounds. Only recently examined in the scholarly literature, these procedural devices exist in one of two forms. Law Inst. and Cons. Model Penal Code § 2. With the exception of Pennsylvania, however, all of the adopting states have converted the provision to a discretionary one.
Moreover, some of the states adopting the provision have further narrowed it through judicial construction to exclude certain enumerated categories of offenses for example, felonies.
See Roberts, supra note , at — may dismiss a criminal action. Penal Code § a ; Conn. Law §§ See State v. Sauve, A. Of course, how judges use the discretion these devices afford is an important part of the equation.
See supra text accompanying notes 50, 94, ; infra section V. Close Plea bargaining scholars have long advocated precisely such an intervention, which one-third of the states already provide through their subconstitutional procedural law. In order for the prosecutor to capitalize on that leverage, however, she needs to be able to replace her inflated charges with some lower set of charges that can be offered to the defendant as an inducement to plead guilty: It is the differential between the threat and the offer that creates the leverage.
Legal F. Notably, the extent to which a jury is made aware of its unqualified power to acquit is a function of the subconstitutional procedural law relating to instructions on this issue, which once again varies across jurisdictions: Most tell juries only of their power to reject charges that are factually unsupported, but others alert juries to their broader power of acquittal.
Compare State v. Ragland, A. The prosecutor can mitigate or eliminate that risk, however, if she can easily replace her overplayed hand with a less audacious one.
This is not a novel idea. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 Tul. Most of these authors focus on how such restrictions could curb factual overreach, but as stated in the text, the same logic applies to piling on, legal overreach, and equitable overreach, insofar as a jury could react negatively to each tactic.
Close In the absence of such restrictions, the prosecutor is free to file inflated charges without fear of overshooting the mark, because she knows that she will have the flexibility to slide down incrementally from her opening salvo to whatever lesser set of charges ultimately prompts the defendant to cave. Otherwise, she runs the risk that the defendant will call her bluff and thereby make her choose between abandoning those charges altogether or instead pressing ahead with a resource-intensive trial on charges the jury could well reject.
Close By determining just how sticky those initial charges will be, the subconstitutional procedural law of amendment, dismissal, and lesser offenses regulates this final component of charge-bargaining power.
Scholars who aim to curb charge bargaining through restrictions on sliding down tend to propose one of two interventions. The first, offered by Professors Ronald Wright and Marc Miller, calls for a self-imposed ban on charge bargaining: Head prosecutors, they say, should simply prohibit their subordinates from changing charges once they have been filed.
Important interests are at stake. Abuses are common. The questions involved are appropriate for judicial determination. And much injustice could be corrected. Charge sliding, however, can instead be regulated directly. Close Specifically, procedural law can regulate charge sliding in four basic ways.
At the other end of the spectrum, by contrast, amendments and dismissals of charges are simply prohibited once the charges are filed—an approach that would essentially prohibit charge bargaining altogether, much as Wright and Miller propose. Close Between these poles, however, two intermediate models cabin charge sliding without eliminating it. The first gives judges discretion to reject proposed changes to the charging instrument, either by requiring judicial approval for amendment and dismissal in general or by expressly authorizing judges to reject plea agreements that entail charge reductions the judge deems inappropriate.
not bring, or will move to dismiss, other charges. Walker, No. Thus, while thirteen states afford prosecutors the full range of flexibility in charge sliding, the majority thirty-three require judicial approval before charges can be amended or dismissed—with fifteen of those expressly granting judges the authority to reject charge bargains that they deem inappropriate.
any plea of guilty. must be or must include at least a plea of guilty of a class D felony. Note that the New York model applies only to indictments, creating an opportunity for prosecutors to evade the restriction by engaging in charge bargaining before formal charges are filed. Close while Michigan has adopted a similar regime for certain drug offenses. Close Meanwhile, California and Nevada impose bans on charge sliding for certain classes of offenses.
See Cal. Penal Code § Close In each of these states, procedural law enacts regulatory constraints that scholars hoping to restrict charge sliding have proposed doing less directly. To appreciate how this body of law might influence plea bargaining dynamics, imagine for the sake of simplicity that our hypothetical armed robbery defendant is charged with only a single, inflated count of kidnapping.
Assume, moreover, that if the case were to go to trial, the jury would recognize the kidnapping charge for the overreach that it is—but would be comfortable convicting the defendant on some less serious offense for example, robbery. By contrast, if at the end of the trial the jury is given the option to convict the defendant of robbery as a lesser offense even though the only charge initially filed was kidnapping , then the pressure will be off: It can and presumably will slide down to the robbery verdict.
Here, however, is the wrinkle: When the prosecutor and the defendant face each other across the bargaining table—well in advance of any trial—neither will be in a good position to predict how a future jury might resolve the dilemma just described. For not only will they have no idea who the jurors are, they will also have only a dim sense of how the evidence will unfold in the heat of trial and of how the jury will react to it.
Given this ex ante ambiguity, fixed rules either requiring the jury to consider lesser offenses or prohibiting them from doing so will be unlikely to have much effect on plea bargaining dynamics—because neither party will know whose ox will be gored in the end. Catherine L. Carpenter, The All-or-Nothing Doctrine in Criminal Cases: Independent Trial Strategy or Gamesmanship Gone Awry? Close In other words, so long as juries are not systematically likely to break one way or the other when faced with the dilemma of inflated charges, symmetrical rules governing the availability of lesser-offense instructions will in most cases be a wash.
Blueford v. Arkansas, U. Taken together, these features of the subconstitutional law can substantially impact how easy or hard it will be for a jury to slide down from an overplayed hand in the context of any given case. But because the desirability of such sliding down will be hard for each party to predict and thus to optimize ex ante, it is difficult to assess the regulatory shadow that these rules might cast on the bargaining table in the typical case. emphasis added internal quotation marks omitted quoting Josh Marquis, Clatsop County District Attorney.
emphasis added. Asymmetrical rules, by contrast, can have a very different effect. Conversely, if the law lets the defendant unilaterally decide whether to give the jury a lesser-offense instruction, then the prosecutor will know up front that she will always confront the worst-case scenario at the end of the trial: She will be denied a soft landing whenever her adversary thinks she needs it, but he will be able to benefit from his own soft landing if he thinks that is in his best interest.
Given these dynamics, the law of lesser offenses can impact plea bargaining dynamics in three basic ways. And in fact, a handful of states embrace asymmetrical rules in this domain: Texas makes it easier for prosecutors to obtain lesser-offense instructions while Colorado, New Jersey, and Utah give defendants greater control over how juries will evaluate the charges against them. State, S. For defendant-favoring rules, see People v.
Skinner, P. Thomas, A. Baker, P. Beyond these three states, Arizona gives defendants an asymmetrical right to force an all-or-none strategy in capital cases.
Rodriguez, P. Krone, P. Gipson, P. Close In these four states, this procedural asymmetry casts its shadow back onto the plea bargaining table and thereby indirectly restricts or enhances—that is to say, regulates—prosecutorial power.
To this point, this Article has mapped a series of regulatory levers that reside within a long-overlooked body of subconstitutional law, demonstrating for each not only its potential to facilitate or restrict prosecutorial power but also its heterogeneous deployment across jurisdictions. Other such mechanisms exist, however, and the ways in which they are regulated by subconstitutional procedural law is ripe for future study. Two examples of such mechanisms include: 1 Sentence bargaining , whereby the prosecutor negotiates with the defendant over the sentence that she will recommend to the judge if the defendant pleads guilty.
Subconstitutional procedural law, however, can help on both fronts. And in fact, states already experiment with both approaches. it will be bound by the terms of the plea agreement in the final disposition of the case.
As for undue judicial deference to prosecutorial sentencing recommendations, procedural law might require that detailed presentence reports be prepared by judicial personnel, see, e. Code §§ , ; Me.
See Crespo, Regaining Perspective, supra note 13, at — A claim bargain occurs when prosecutors deploy their charge- or sentence-bargaining leverage not to secure a guilty plea but rather to get the defendant to forfeit a potentially viable legal claim—a power prosecutors can use to shape the underlying substantive and constitutional landscapes themselves.
And on that score, procedural law varies. Similarly, the law governing conditional plea agreements can determine whether the defendant will have a chance to acknowledge his factual culpability and thus plead guilty while simultaneously preserving his opportunity to challenge and appeal potentially dispositive legal issues. Class v. Close That heterogeneity, in turn, suggests a genuine opportunity for regulatory experimentation, and with it the potential for reform.
PENNumbra , n. It is an agenda, however, that this project both invites and begins to equip scholars to undertake. The goal in this Part is thus to identify a core set of questions and hypotheses for future investigation. When it comes to assessing the potential impact of procedurally grounded reforms, it is useful to consider potential hydraulic counterpressures that are both internal and external to the legal apparatus itself.
Internal Hydraulics: The Importance of Coordinated Regulatory Frameworks. Close Of course, plea bargaining is not unique in this respect: Regulated actors routinely seek to evade their constraints by exploiting potential cracks in the regulatory regime, an endemic feature of regulation that simply underscores the need to avoid such cracks in the first place—by constructing a coordinated and up-to-date regulatory apparatus.
Fortunately for plea bargaining reformists, the analysis in the preceding Parts helps identify precisely such a coordinated set of reforms, insofar as it highlights how different procedural levers interact with one another and offers real-world examples of cutting-edge procedures already in place across the states.
Drawing on that analysis, the following three hypothetical rules offer an example of a holistic regulatory approach that would constrain prosecutorial power by pulling on each of the various procedural levers discussed thus far:. Acts , —61; N. Close In the event multiple charges yield multiple convictions in a single case, the associated penalties shall be served concurrently, unless the court orders otherwise.
C; cf. A; cf. Close The court shall dismiss any charges that are unsupported by the evidence adduced at such hearing or that fail to state an offense as a matter of law. Close The court shall also have the authority to dismiss charges when the interests of justice otherwise so require. Close In the event of dismissal, no charges arising from the same alleged criminal event, episode, or scheme may subsequently be filed against the defendant, unless supported by newly discovered evidence that was not previously available to the prosecution.
Close Once trial has commenced, the jury will not be instructed with respect to any charges other than those in the charging instrument, unless the defendant so requests.
State, N. Pribil, N. That is an unsurprising feature of a reform agenda that hopes to counter mass incarceration. Close And yet, the potentially deterrent or incapacitative upsides of incarceration will be diminished by these reforms as well. Reasonable minds thus can and should disagree about whether the particular reforms suggested above or others like them go too far—or not far enough. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L.
Herbert L. Packer, The Limits of the Criminal Sanction discussing inherent tension between liberty and security in the administration of criminal justice. One might expect the ideal answer to this policy question or the range of acceptable answers to vary from one locality to the next, given the often-sharp variation in empirical realities, political challenges, and normative approaches at play in criminal justice systems across the country.
Stuntz, Unequal Justice, Harv. But regardless of how policymakers ultimately strike that balance, the hypothetical rules set out above demonstrate that, simply as a matter of regulatory design, a holistic approach to plea bargaining reform—grounded in subconstitutional procedural law—is conceptually within reach.
As for prosecutorial evasion of procedural restraints, two additional points merit further discussion: First, there is the concern that prosecutors will bargain around the enhanced procedures themselves. Reforms creating a robust preliminary hearing, for example, might arguably be undercut if intrepid prosecutors use their charge-bargaining leverage to force defendants to waive the hearing itself.
supra section III. Robert H. Ethington, P. That question, moreover, must be resolved one way or the other for virtually every regulatory lever discussed in this Article, which raises the possibility that certain forms of procedure bargaining might simply be banned outright.
How such a ban might ultimately impact the underlying market for pleas will be context dependent, driven in part by prosecutorial resources. The implications—and the wisdom—of such a ban is thus open to debate. The key point here, however, is that this policy debate is one for subconstitutional procedural law to resolve. Second, apart from procedure bargaining, there is a related question about whether prosecutors might seek to evade procedural constraints by moving plea bargaining earlier in time, before the judicial process and its accompanying regulatory framework gets into gear.
Notably, however, this concern is considerably more pronounced in the federal system, in which plea bargaining can occur during the lengthy investigation periods that precede the commencement of formal proceedings. See supra note describing Gerstein hearings. Moreover, plea bargaining cannot occur until the defendant has an attorney. See Padilla v. Kentucky, U. And because the vast majority of state court defendants are indigent, their attorneys are often appointed through the court system itself, which further confines the plea bargaining process to a point in time after the judicial process—and its attendant regulatory procedures—kicks into gear.
Thus, the practical window within which precharge bargaining and any associated regulatory evasion might occur is substantially shorter in state court than in the federal system. Few scholars of American criminal justice doubt that such extralegal forces—ranging from resource imbalances between prosecutors and defendants, to informal institutional norms and practices, to the complex power dynamics associated with race, gender, and class—produce sometimes-sizable gaps between the criminal law codified on the books and the criminal law implemented on the ground.
On the significance of resource imbalances between prosecutors and defense attorneys, see, for example, Crespo, Regaining Perspective, supra note 13, at —20 discussing the indigent-defense crisis ; see also Bibas, Outside the Shadow, supra note 17, at —40 discussing consequences for plea bargaining. On the significance of informal norms and practices, see, for example, Mona Lynch, Hard Bargains: The Coercive Power of Drug Laws in Federal Court 2—8 [hereinafter Lynch, Hard Bargains].
As for race, class, and gender dynamics, the literature is simply too massive to cite. Natapoff, supra note , at In other words, while this Article raises the question of which law matters, it proceeds from a shared scholarly premise that law does indeed matter in this domain. in order to do their work. at In a criminal justice system as atomized as ours, there can be no single answer to that question—only a plethora of very specific ones, each tied to the particular sociolegal facts of the jurisdiction at hand.
Close Indeed, to the quantitative empiricist, the discussion in the preceding Parts may offer some early grist for a study of the consequences that one should expect to follow from pulling one or another of the regulatory levers uncovered here, as each lever is essentially an independent variable of interest, paired with a hypothesis about how it ought to impact plea bargaining power and criminal justice outcomes.
See infra note and accompanying text. And accessing criminal justice data presents its own challenges. See Crespo, Systemic Facts, supra note 6, at —10 discussing the lack of data transparency in many criminal justice systems.
Close Consider, in this vein, the following two matrices, which collect some of the key variables that one might hope to explore:. Broadly Restrictive Regimes Black ; Nonrestrictive Regimes White ; Intermediate Regimes Gray. Asterisks in Table 3 mark the states with the five lowest plea rates in Table 2. Taken together, these tables capture a promising degree of variability with respect to the essential data points of interest.
Note also that both tables are limited to states in which reliable plea bargaining data are available. For sources, see infra Appendix at Table F. Close If a state employs a nonrestrictive approach to regulating prosecutorial power with respect to that lever, the corresponding cell is shaded white; if it employs a broadly restrictive approach, the corresponding cell is shaded black; and if it employs one of the many intermediate regulatory approaches, the relevant cell is shaded gray.
See supra section II. A; infra Appendix at Table A. In the preclusion column, the black cell New Mexico represents mandatory similar-offense joinder, whereas white cells represent the constitutional floor.
B; infra Appendix at Table A. In the cumulative-sentencing column, the black cell Texas, again represents mandatory concurrent sentencing, whereas the remaining gray cells employ various discretionary regimes. C; infra Appendix at Table B. In the pretrial-evidentiary-review column, black cells represent states with hearings as of right, whereas the white cell Indiana represents a no-review state. See supra section III. A; infra Appendix at Table C. Finally, in the amendment column, the black cell New York represents a capped-amendment model, whereas the white cells represent unlimited amendment.
See supra section IV. As for the dependent variables, each table reports an outcome variable of particular interest: In Table 2, the states are organized in descending order according to the percentage of felony cases in which prosecutors are able to secure guilty pleas, while in Table 3 they are ranked according to the number of felony guilty pleas prosecutors obtain per every one hundred reported crimes.
The plea, dismissal, and trial data for each state also come from To be clear, these matrices simply collect some of the data that one would need to have on hand to begin examining the impact that specific procedural reforms might have on plea bargaining practices. Perhaps most notably, diversionary agreements are not consistently reported in the same category across states; moreover, at least two states—Hawaii and Florida—report greater than ten percent of their felony cases as not being resolved by plea, trial, or dismissal.
See infra Appendix at Table F listing underlying sources and figures. See supra notes —, — and accompanying text.
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Our Custom Essay Writing Service Features. Covey, Fixed Justice: Reforming Plea Bargaining with Plea-Based Ceilings, 82 Tul. At the same time, felony plea rates also vary considerably across states, with that variability driven by differences not in the rates of trials which are fairly constant but rather in the rates of dismissals—just as one would expect if procedural regulation is in fact driving resource-constrained prosecutors to screen their cases more aggressively. For instance, Hollman said the company built an ML feature management platform from the ground up. If you continue browsing.supra text accompanying note 94 discussing structured sentencing discretion as a mode of clarifying uncertainty ; supra section III. Close the law of preclusion in fact entails a broader, largely unexamined, subconstitutional framework, which addresses two related regulatory questions: First, when will one case be deemed to preclude another? Oregon, U. We are ambassadors for the judiciary to the people in our courtroom — it's a very frightening proposition being in court if you've been federally charged, and people have perceptions of what they think can happen there in terms of fairness or unfairness. As for quantitative analyses, it bears noting that temporal variation may be particularly illuminating insofar as changes in plea rates or the lack thereof immediately surrounding changes to specific procedural levers could help isolate causal inferences. You do see some discretionary banc de binary discuss the options trading phenomenon which are being not canceled, but pushed out.