IDEAS home Printed from
   My bibliography  Save this paper

Habeas Bargaining


  • Anup Malani

    (University of Virginia)


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.

Suggested Citation

  • Anup Malani, "undated". "Habeas Bargaining," University of Virginia John M. Olin Program for Law & Economics Working Paper Series uvalwps-1007, University of Virginia School of Law.
  • Handle: RePEc:bep:uvalwp:uvalwps-1007

    Download full text from publisher

    File URL:
    Download Restriction: no

    Other versions of this item:

    More about this item


    Access and download statistics


    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:bep:uvalwp:uvalwps-1007. See general information about how to correct material in RePEc.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: (Christopher F. Baum). General contact details of provider: .

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service hosted by the Research Division of the Federal Reserve Bank of St. Louis . RePEc uses bibliographic data supplied by the respective publishers.