The Ethics of Plea Bargaining

Overview

The practice of plea bargaining plays a hugely significant role in the adjudication of criminal charges and has provoked intense debate about its legitimacy. This book offers the first full-length philosophical analysis of the ethics of plea bargaining. It develops a sustained argument for restrained forms of the practice and against the free-wheeling versions that predominate in the United States.

In countries that have endorsed plea bargains, such as the United States, upwards...

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Overview

The practice of plea bargaining plays a hugely significant role in the adjudication of criminal charges and has provoked intense debate about its legitimacy. This book offers the first full-length philosophical analysis of the ethics of plea bargaining. It develops a sustained argument for restrained forms of the practice and against the free-wheeling versions that predominate in the United States.

In countries that have endorsed plea bargains, such as the United States, upwards of ninety percent of criminal defendants plead guilty rather than go to trial. Yet trials, which grant a presumption of innocence to defendants and place a substantial burden of proof on the state to establish guilt, are widely regarded as the most appropriate mechanisms for fairly and accurately assigning criminal sanctions. How is it that many countries have abandoned the formal rules and rigorous standards of public trials in favor of informal and veiled negotiations between state officials and criminal defendants concerning the punishment to which the latter will be subjected? More importantly, how persuasive are the myriad justifications that have been provided for plea bargaining? These are the questions addressed in this book.

Examining the legal processes by which individuals are moved through the criminal justice system, the fairness of those processes, and the ways in which they reproduce social inequality, this book offers an ethical argument for restrained forms of plea bargaining. It also provides a comparison between the different plea bargaining regimes that exist within the US, where it is well-established, England and Wales, where the practice is coming under considerable critique, and the European Union, where debate continues on whether it coheres with inquisitorial legal regimes. It suggests that rewards for admitting guilt are distinguished from penalties for exercising the right to trial, and argues for modest, fixed sentence reductions for defendants who admit their guilt. These suggestions for reform include discouraging the current practice of deliberate over-charging by prosecutors and charge bargaining, and require judges to scrutinize more closely the evidence against those accused of crimes before any guilty pleas are entered by them. Arguing that the negotiation of charges and sentences should remain the exception, not the rule, it nevertheless puts forward a normative defense for the reform and retention of the plea bargaining system.

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Product Details

  • ISBN-13: 9780199641468
  • Publisher: Oxford University Press
  • Publication date: 12/17/2011
  • Pages: 300
  • Product dimensions: 6.30 (w) x 9.30 (h) x 1.00 (d)

Meet the Author

Richard L. Lippke is a Senior Scholar in the Department of Criminal Justice at Indiana University. In addition to his current position, he has held teaching positions at James Madison University and DePauw University, and has been a visiting fellow at the Centre for Applied Philosophy and Public Ethics at Australian National University and the Centre for Criminology at Oxford University. He is the author of Rethinking Imprisonment (OUP 2007), Radical Business Ethics (Rowman & Littlefield 1995), and numerous articles in applied ethics and philosophy of criminal law.

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Table of Contents

Acknowledgments vii

Abbreviations xi

Introduction 1

Delineating the issues: the forms and limits of plea bargaining 5

1 Waiver Rewards and Trial Penalties 10

Official tolerance of trial penalties: the Bordenkircher case 11

Separating waiver rewards from trial penalties 12

Detecting trial penalties 16

Objections to settlement hearings 23

Charges added consequent to failed plea negotiations 28

Strategic overcharging 31

Suboptimal sentencing schemes 35

Concluding remarks 36

2 Against Trial Penalties 38

Moral basis of the right to trial 39

The variety of defendants and the hazards of unilateral imposition of trial penalties 43

Further arguments against trial penalties 46

Trial penalties as a means to fair outcomes? 49

The exception that proves the rule? 53

Trial penalties and duress 54

A lingering doubt 60

Concluding remarks 62

3 Waiver Rewards and Deserved Punishment 63

Desert-based approaches to the justification of legal punishment 64

Rewards for acknowledging guilt 68

Expanding deserved punishment 72

The problem of innocent defendants 82

Charge bargaining 84

Waiver rewards in the non-ideal world 90

Concluding remarks 96

4 Remorse and Waiver Rewards 97

Two preliminary points 99

What is remorse? 100

Retributive arguments for remorse-based sentence mitigation 101

Remorse and crime reduction 112

Conclusions 117

5 Waiver Rewards and the Reduction of Crime 119

A preliminary point 120

Easterbrook's defense of plea bargaining l22

Initial problems with Easterbrook's account 125

The more subtle costs to robust plea bargaining 130

Bringing the background forward: is more punishment always better? 136

Concluding remarks 145

6 Rewarding Cooperation 146

Rewarding betrayal, penalizing loyalty 149

Absolute injustice and the duty to cooperate 151

Comparative justice 157

Cooperating witness reliability 161

Concluding remarks 166

7 Plea Bargains as Contracts 167

Initial doubts 171

Background conditions 173

Dubious prosecutorial tactics 176

Waiver rewards and the aims of punishment 181

Defendants' entitlements 183

Honorable negotiated settlements 188

8 Principled Criminal Prosecution and Half-Loaves 191

Some preliminary points 193

Criminal prosecution and principled state actors 196

Arguments in support of half-loaf plea bargaining 204

The problem of innocent defendants 212

Concluding remarks 215

9 Plea Bargaining and Getting at the Truth 217

A preliminary point 220

The deficiencies of robust plea bargaining in getting at the truth 221

Will adversary trials fare better? 225

Could plea bargaining be made to better get at the truth? 230

Truth and the limits of charge-adjudication schemes 238

Epilogue 241

Bibliography 247

Index 255

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