Habeas Bargaining: This paper asks whether defendants exchange their habeas rights in return for shorter sentences much as they do with their trial rights in plea bargains. It finds that federal defendants frequently do so when they plead guilty and that some state and federal prisoners even do so after conviction and sentencing if they have identifiably serious state or federal habeas claims. However, such "habeas bargains" are not as common as ordinary plea bargains. The paper offers a number of explanations, e.g., that state prosecutor offices are structured such that they do not internalize the benefits of habeas bargains and that the rigidity of the U.S. Sentencing Guidelines and mandatory minimums in federal criminal statutes rules out many sentencing compromises at the federal level. However, it ultimately finds that there are a significant number of cases where bargains could have been struck but were not because the parties simply did not think to trade habeas rights. The paper concludes with a recommendation that defense attorneys and prosecutors more frequently consider bargaining over habeas rights because such deals can mitigate the growing overall cost of habeas litigation. Moreover, courts ought to treat the resulting agreements much as they do plea agreements, i.e., screen them ex ante with Rule 11-type colloquies and enforce them ex post so long as they are voluntary and knowing.
