
Contents
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I. Some Historical Context I. Some Historical Context
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II. Criminal Defendants as Have-Nots II. Criminal Defendants as Have-Nots
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III. Prosecutors and Defense Lawyers as Repeat Players III. Prosecutors and Defense Lawyers as Repeat Players
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IV. Plea Bargaining IV. Plea Bargaining
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V. Reform V. Reform
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VI. Conclusion VI. Conclusion
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References References
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Galanter’s Analysis of the “Limits of Legal Change” as Applied to Criminal Cases and Reform
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Published:June 2021
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Extract
Marc Galanter’s Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change was not intended to be an in-depth analysis of the criminal legal system. Instead, it asks the reader to look broadly at the legal system to examine what might help decrease inequalities for the have-nots in our society. I will focus on a few of these limitations and the impact (or lack thereof) on criminal legal reform.
Some Historical Context
The US criminal legal system in the early 1970s was, in some ways, a more hopeful time for those concerned about defendants’ rights. In the previous fifteen years, the Supreme Court had decided a series of landmark criminal procedure cases, including Gideon v. Wainright and Miranda v. Arizona, which expanded criminal defendants’ right to counsel and improved protections surrounding confessions. However, it was also a time of increasing public fear about violent crime and rising crime rates. Crime became a political issue and politicians passed “tough on crime” laws. Despite crime’s politicization, many assumed that the courts would continue to improve protections for criminal defendants as the Warren Court had done. Galanter disagreed, instead presenting a complex analysis focusing on the parties themselves and whether they are “haves” or “have-nots” and the impact of being a one-shot player versus a repeat player. As the last four decades have shown, this view is accurate in the criminal context. Courts refused to protect criminal defendants from legislative changes that gave prosecutors more power through increased criminalization, mandatory minimum sentences, and longer terms of imprisonment—policies that resulted in mass incarceration.
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