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Retributivism and plea bargaining.

Plea bargaining is a ubiquitous phenomenon in certain contemporary criminal justice systems. Most estimates of its frequency in the United States, for instance, suggest that upwards of ninety per cent of criminal cases are resolved through some form of it. (1) Plea bargaining consists of both sentence bargaining, where charged defendants agree to plead guilty in exchange for sentence reductions, and charge bargaining, where charged defendants plead guilty to a subset of charges (sometimes for reduced sentences) against them in exchange for prosecutors dropping other charges (or not adding additional ones).

There has been some philosophical discussion of the practice of plea bargaining, much of it focused on whether prosecutors' offers are in some way coercive. (2) Considerably more attention has been paid to it by legal scholars. (3) But none of the extant literature addresses very fully or carefully the ways and extent to which the practice comports with a retributive approach to the justification of legal punishment. (4) Intuitively, plea bargaining seems at odds with an approach to the justification of legal punishment that focuses on sanctioning offenders in accordance with the severity of their crimes. The relation between plea bargaining and just punishment seems too contingent to satisfy retributivists, especially since the existing literature on plea bargaining makes apparent that its outcomes depend on factors that often have little to do with the gravity of the offenses with which defendants are charged or to which they plead guilty, (5) Indeed, there seems little reason to believe that plea bargaining yields penalties for sanctions that consistently or systematically give offenders what they deserve. Moreover, plea bargaining may sometimes induce factually innocent defendants to plead guilty, while permitting individuals who are guilty of crimes to avoid punishment for them. Add to this the evidence that those who accept guilty pleas receive sentences that are lighter by some twenty-five to seventy-five per cent than those who, after trials, are convicted of the same offenses, and it is clear why retributivists might view the practice with considerable unease. (6)

Some will respond to the preceding points by noting that they say more about the dubious character of retributivism than the suspect credentials of plea bargaining. But one need not be a pure retributivist to be troubled by the apparently tenuous relationship that exists between plea bargaining and ensuring that citizens receive the sentences that those among them who have committed crimes deserve. Even those who regard desert as only a limiting principle in a comprehensive justification of legal punishment, one that also gives a prominent role to crime reduction, might worry about the extent to which plea bargaining seems at odds with that principle. I shall not, in what follows, attempt to determine the precise weight that a desert principle should be given in a fully developed account of legal punishment, though I will assume it should be accorded significant weight. I shall instead elaborate the tensions between it and the practice of plea bargaining, recognizing that how troublesome those tensions will turn out to be depends on how seriously we take the notion that punishment should be responsive to citizens' criminal deserts.

In the first section, I discuss the guiding principles and presuppositions of retributive justice. The latter concern the broader social conditions that must be satisfied if legal punishment is to function meaningfully as a mechanism for censuring citizens for their blameworthy conduct.

The former concern the more specific features a criminal justice system must incorporate if it is to perform the tasks retributivists expect of it. In the second section, l refer to these presuppositions and guiding principles in elaborating the tensions that exist between retributive justice and plea bargaining. In the third section, I consider whether retributivists would permit plea bargaining at all and, if they would, what limits they would place on it. I also address various objections that have been or might be raised to a retributive critique of plea bargaining. I do not conclude that plea bargaining should be entirely eliminated, though I do suggest that a concern to enact retributive justice would require us to substantially curtail and alter its current practice.

Before proceeding, it is worth noting that nothing I say in what follows should be construed to endorse the proposition that all charged defendants should go forward with trials. Retributivists would be happy to have all factually guilty defendants admit their guilt and accept their just punishment, thus making further adjudication of the charges against them unnecessary. But retributivists must worry about the conditions under which such guilty pleas are entered, the attitudes about crime and punishment implicitly encouraged by plea bargaining, and the sentences such a practice tends to yield.

I Guiding Principles and Presuppositions of Retributive Justice

To place plea bargaining in perspective, it will be useful to elaborate the guiding principles and presuppositions of a criminal justice system that gives retribution a prominent role. What follows is a normative account of retributive criminal justice. Whether and to what extent existing criminal justice systems achieve what they should, retributively speaking, are further questions that require both empirical investigation and complex evaluation.

One initial difficulty we face is that there are different versions of retributivism in the contemporary literature and it is not possible to discuss each of them in detail. (7) Hence I shall operate with a fairly abstract account of a retributive penal aim, one that I believe is consistent with the more specific versions that have been defended. According to this abstract account, legal punishment is to be understood as an institutionalized form of censure for conduct that is morally blameworthy. Criminal offenders, on this account, have not simply acted in ways that are socially disapproved of or contrary to their own interests, but have acted in ways that are morally unjustified. Either they have invaded the moral rights of others or have threatened or attempted to do so, or they have violated legal rules the enforcement of which usefully coordinate complex interactions among citizens or allocate access to scarce resources in ways that are fair. Legal punishment censures offenders' conduct by imposing losses or deprivations on them proportional to the seriousness of their offenses. Different versions of retributivism provide competing accounts of why the state should undertake this censuring role, but this much I take to be essential to any account of retributive justice.

More controversial are what I believe are certain presuppositions of retributivism, which I will collectively refer to as the "social conditions of responsible citizenship." These are conditions that I contend must obtain in a society if retributive punishment is to make sense within it. First, citizens must have meaningful options other than criminal offending through which they can pursue decent, autonomous lives. In contemporary societies, most citizens will have such options. But some--the severely socially deprived, for instance--may not. To the extent that citizens lack such options (and admittedly this will be a matter of degree) then I would argue that their criminal offending may not be sufficiently voluntary for the purposes of retributive punishment. (8) This is not to say that severe social deprivation is tantamount to duress, as some have argued, but it is to say that individuals who continually confront moderate to hard choices about whether to criminally offend should be distinguished from their more fortunate counterparts who do not. Perhaps the former should still be retributively punished but in ways that are reduced so as to recognize the very difficult circumstances in which they find themselves.

Second, retributivism presupposes that those liable to punishment are capable of morally governing their conduct, at least up to some minimal level of competence. Most adult citizens in contemporary societies will satisfy this requirement, though some (for example, the insane) will not and for reasons that are substantially beyond their control. In some cases their deficiencies will be the result of biological factors, but in others they may be traceable to social conditions that have truncated or undermined development of the relevant capacities. We should worry, I believe, that severe social deprivation can leave individuals so alienated from the social order, or so focused on short-term personal gratification, that they are unsuitable subjects of the moral opprobrium retributive punishment communicates. Even if such individuals are capable of restraining themselves in the face of ubiquitous threats from state authorities, they may be largely incapable of the kind of moral self-restraint legal punishment (on a retributive account) requires. (9)

By establishing and maintaining the social conditions of responsible citizenship we ensure that those who violate the criminal law are not so desperate of incapable of moral self-restraint, or both, that censuring them for their conduct makes sense. Moreover, such conditions seem likely to reduce criminal offending, and thus the demands placed on the criminal justice system. Indeed, high rates of offending in many countries with pockets of severe social deprivation may be part of what spurs the frequent resort to plea bargaining. And the questionable fairness of punishing citizens who have not been assured the social conditions of responsible citizenship may help to explain why some defend plea bargaining, even though it appears to result in disproportionately mild sentences.

A third presupposition of retributive justice is that the criminal law prohibits all and only those acts that a defensible account of its limits supports. Simply put, we should not censure citizens for actions that are within their moral rights or need not be proscribed in order to achieve acceptable levels of social coordination. Yet existing societies may criminalize a range of acts that they should not, and some support for plea bargaining and the apparently mild sentences the practice yields may stem from the perception that citizens are charged for offenses that should not be offenses in the first place, or are threatened with sanctions that are too harsh given a defensible normative account of the severity of offenses. But no clear-thinking retributivist would approve of milder sentences for conduct that should not be criminalized in the first place. Also, even if the usual outcome of plea bargaining is reductions in sentences that are generally too harsh, the process seems a decidedly haphazard way of arriving at proportionate sentences, for reasons that will become more apparent as we proceed.

Assume, then, that the social conditions of responsible citizenship are satisfied, the criminal law prohibits an appropriate range of conduct, and utilizes sanctions that are proportional to the gravity of offenses. I contend that retributivism would have us devise a criminal justice system in accordance with four guiding principles. First, there is the Principle of Accurate Sorting. According to this principle, we should set up the criminal justice system to reasonably ensure that it not only separates the guilty from the innocent and inflicts legal sanctions only on the former, but convicts individuals of the crimes that they actually committed. The grounds for this principle are obvious, at least for any approach to the justification of legal punishment that is premised on treating citizens according to their deserts. A criminal justice system goes badly wrong, from a retributive perspective, if it systematically punishes the innocent or if it systematically punishes the guilty though not for the crimes they committed.

To ensure that the criminal justice system succeeds at accurate sorting, we must do a number of things. We must provide the police, prosecutors, and courts with sufficient resources to detect crimes, investigate them thoroughly, and bring their perpetrators to justice. This is an obvious but not trivial point. It is apparent that many existing criminal justice systems resort to plea bargaining so often, at least in part, because those authorized to investigate and prosecute offenders do not have sufficient resources to do their jobs. Accurate sorting will also be enhanced by seeing to it that criminal defendants are able to put forward credible defenses, which means that they too must have sufficient resources to investigate the charges against them, file motions to dismiss charges or challenge evidence, put the prosecution's case to the test if it goes to trial, and appeal convictions once they occur. Since many criminal defendants are poor, the Principle of Accurate Sorting arguably requires the state to furnish them with the resources to do these things. As numerous commentators have noted, it is precisely the failure of many existing societies to ensure defendants an adequate defense that leads many of them to accept plea bargains, in some cases to their considerable detriment. (10)

Beyond ensuring that both the prosecution of and defense against criminal charges is funded with sufficient resources, the Principle of Accurate Sorting grounds other familiar features of criminal justice systems. It rules out the torture of suspects or the coercion or bribery of witnesses, for instance, and it is the basis for the various provisions of the criminal law that establish minimum requirements of responsibility for criminal conduct. It also arguably grounds a high standard of proof (that is, beyond a reasonable doubt) on the state to secure the conviction of individuals, since such a standard reduces the likelihood that innocent individuals will be convicted. Not only does the state typically have considerably more resources at its disposal than criminal defendants, its officials have powerful incentives to convict more rather than fewer individuals, sometimes at the expense of accurate sorting. Still, retributivists must accept the reality that in setting up any humanly devised and operated criminal justice system, some injustice in the form of punishment of the innocent will occur. The Principle of Accurate Sorting enjoins us to take all reasonable measures to guard against this, not all possible ones. (11) As Kenneth Kipnis puts it, we must see to it that such injustices are aberrations, not systematically produced by the system. (12)

The second guiding principle of a retributive criminal justice system is the Principle of Proportionality. At its most general specification, proportionality requires us to set up criminal sanctions that punish crimes in accordance with their seriousness, which is standardly taken as a function of the harms they do, threaten, or attempt and the culpability of offenders in doing, threatening, or attempting them. But proportionality is a complex notion with both ordinal and cardinal dimensions. The former requires us to set up sentencing schemes that punish more serious crimes more harshly than less serious ones and much more serious crimes much more harshly than much less serious ones. (13) Importantly, ordinal proportionality is consistent with sentencing ranges for the various types of offenses, since even within a given category of offense, there may be variations in the harm done or culpability exhibited by offenders. There is debate about how large these ranges should be, with some theorists more concerned than others that wider ranges might result in unjustified disparities among those who have been convicted of similar types of offenses. (14) But the problem raised by plea bargaining, as we will see, is that existing forms of it appear to yield sentence ranges that are indefensibly broad across those who are guilty of the same or similar types of offenses--ranges that few retributivists can comfortably defend. Cardinal proportionality is the more elusive notion that the sanction scale must be properly anchored so that sentences do not greatly exceed or fall short of what, in some absolute sense, justice requires. Thus, cardinal proportionality would presumably rule out ten-year prison sentences for minor criminal offenses, even if more serious offenses were punished with even longer prison sentences (thus satisfying ordinal proportionality).

A third guiding principle might appear somewhat suspect, but I believe it can and should be endorsed by retributivists. I will refer to it as the Principle of Scope. It says that we should devise a criminal justice system that convicts and punishes more rather than fewer offenders. It might seem that such a principle is more at home within crime reduction approaches to the justification of legal punishment, but retributivists would rather see more, rather than fewer, offenders receive their just deserts. To illustrate this, consider two criminal justice systems: In the first, suppose that for every fifty guilty individuals punished, we (mistakenly) punish one innocent one. In the second, suppose that for every five hundred guilty people punished, we (mistakenly) punish ten innocent people. Assume that the number of crimes each system confronts is roughly the same. The proportion of guilty to innocent people punished in the two is the same, fifty to one. But the second system has more scope in the sense that it is much more adept at detecting, prosecuting, and punishing the guilty. Retributivists should, it seems clear, favor the second system over the first. True, it punishes more innocent people in absolute terms (though not proportionally), but it also ensures that more guilty people get what they deserve. If that is not convincing, we could change the numbers. Suppose that under the second system for every thousand guilty punished, only five innocent ones were punished. Surely, at some point retributivists must give some weight to the number of people a system is able to convict and punish, even if when compared to an alternative, much less adept system, the absolute number of innocent people (mistakenly) convicted is larger in the system with more scope.

However, retributivists should not prefer a system with more scope if it is wildly inaccurate. Suppose that the second system, while capturing and punishing many more guilty offenders, systematically punished them for crimes that were substantially different from the ones they actually committed. In that case, it would seem that retributivists might prefer the first, less efficient but much more accurate system. The second, after all, could only dubiously be defended as enacting justice. What

this means, I believe, is that retributivists cannot easily endorse the notion that it is better for the guilty to be punished for something rather than nothing. It is not better, at least if the crimes for which the guilty are punished are substantially unrelated to the crimes they actually committed. Accurate sorting, in other words, seems to have priority over scope for retributivism, though how strongly so, is, I would admit, a difficult question to answer. Some critics of plea bargaining seem to place great if not absolute value on accurate sorting, while some of its defenders give more weight to increased scope. Even if we are convinced that accurate sorting by a criminal justice system is more important than increased scope, it may not be apparent how much more important it is. This is a question that I will return to in due course.

A fourth guiding principle is what I will refer to as the Principle of Censure. According to it, we should take reasonable steps to ensure that the censure of criminal conduct--that is, the official public condemnation of those who violate the criminal law's animating moral norms--remains the primary message communicated by the criminal justice system. For retributivists, punishment is not justified simply as a crime prevention measure or as a pricing system for offenses. The illegal acts of offenders are also quite often moral wrongs and should be portrayed and dealt with as such. Retributivism presupposes that offenders are rational moral beings who are capable of restraining their criminal impulses based on moral considerations and properly subject to official censure when they fail to do so. They are not, in other words, amoral beings motivated primarily by self-interest at whom it is necessary to brandish the stick of criminal sanctions. Of course, it may be that some offenders are insufficiently motivated by moral considerations, sometimes because society has failed to establish and maintain the conditions of responsible citizenship. Retributive punishment of such offenders is problematic, though how problematic it is may depend on the extent of their deficiencies as moral agents. But recognition of this unfortunate fact should not lead authorities too quickly or easily to eschew the moral dimension of legal punishment, turning it into a practice in which the wrongness of offenses and the fitting punishment of them come to be seen as matters to be negotiated or bartered about.

Finally, retributivists can reasonably insist that the pursuit of criminal justice be consistent with other important values of liberal democratic societies, such as privacy, liberty, or equal opportunity. They might, for instance, oppose policing tactics that excessively intrude upon the privacy of citizens, by eavesdropping on their conversations or searching their homes without reasonable cause. Such tactics would, no doubt, increase the scope and accurate sorting of the criminal justice system, but would arguably do so at too great a cost to other values. Thus, retributivists might support the so-called "exclusionary rule" that denies prosecutors the use of improperly obtained evidence. (15) Retributivists could also agree that we should not devote so many resources to the pursuit of criminal justice that our schools are left impoverished or our elderly of ill unprovided for.

This requirement of consistency with other values, though not a guiding principle of retributive justice per se, is nonetheless relevant to the debate about plea bargaining. There will be inevitable and reasonable limits on how many resources we can devote to the pursuit of retributive justice. Devoting unlimited resources to it is not, I will assume, an option. Some may wonder how a retributive approach to legal punishment can accept anything short of unstinting efforts to give offenders their just deserts. But there might be other things citizens deserve or requirements of social justice that are not desert-based that warrant our attention and against which the demands of retributive justice will have to be weighed and balanced. If this is correct, it follows that societies might reasonably allocate more resources to the arrest and conviction of those who commit more serious offenses rather than less serious ones. If we cannot see to the punishment of all of those who are deserving of it, it seems that we should first see to the punishment of those who are more deserving of it.

II Retributivism and Plea Bargaining: The Tensions

Having sketched the presuppositions and guiding principles of a retributive approach to criminal justice, the concerns such an approach raises with regard to plea bargaining can now be elaborated. Again, plea bargaining encompasses both sentence and charge bargaining. In the former, prosecutors and accused defendants reach negotiated settlements regarding the sentence the latter will be assigned once they plead guilty to a crime or crimes. In the latter, a negotiated settlement is reached concerning the charges against defendants that will be dropped in exchange for their guilty pleas to some other charge or charges, or concerning the charges against them that will not be filed in exchange for such pleas.

Before proceeding, two preliminary points are worth making. First, retributivism would appear to require that a prosecutor's primary concern should be with ensuring that justice is done. Considerations of politics, career advancement, and even efficient handling of their case loads should all be less important. This brings us to the second point. Prosecutors in the United States have considerably more discretion in reaching plea bargaining agreements than their counterparts in some European countries. In particular, United States prosecutors can levy or drop charges against defendants with relatively little scrutiny by the courts. This gives them enormous leverage in negotiating pleas, leverage that it seems clear some of them abuse in various ways. Though agreements reached by United States prosecutors might have to be approved by a judge, judicial scrutiny of plea agreements is often perfunctory. In some European countries, by contrast, the courts more actively and rigorously oversee the comparatively limited negotiations that take place between prosecutors and defendants (or their attorneys) in order to ensure that the outcomes comport with justice. (16) Moreover, some European countries have more exacting standards designed to ensure that there is a factual basis for guilty pleas--even to the point of requiring trials in cases where a sentence reduction agreement has been reached. Retributive considerations might well support scrutiny of the factual basis for guilty pleas, especially where the charges pleaded to are serious and the sanctions severe, since mistakes in such cases will constitute more grave miscarriages of justice.

Charge bargaining and retributivism seem to be deeply at odds with one another. Why should it be up to prosecutors and defendants to bargain about the charges that will be brought or dropped against the latter, especially if there is enough evidence for defendants to be charged with crimes in the first place? Retributive justice would appear to demand that offenders be charged and, if possible, punished for all of the crimes they have committed, not some subset of them. Otherwise individuals will not be punished for all of the crimes for which they deserve to be punished. Of course, if prosecutors believe, after further investigation (that might include consultation with the defendant's attorney) that charged defendants ate actually innocent or that they are unlikely to be able to establish their guilt beyond a reasonable doubt, then they might reasonably drop the charges. But this is a decision that prosecutors should make on their own, not in exchange for a guilty plea to other charges. They should not agree to drop charges or forgo them if they believe that a credible case establishing guilt exists against defendants. If they are allowed to do so, then they are not really attempting to punish the guilty for all of their offenses, contrary to the Principle of Scope.

Moreover, charge bargaining may produce outcomes where factually innocent defendants plead guilty in exchange for promises from prosecutors to drop other charges (or not file them), in violation of the Principle of Accurate Sorting. Why would innocent defendants do such a thing? For any number of reasons. (17) They may be unable to make bail and be offered a deal according to which, if they plead guilty to reduced charges, they will be sentenced to time already served. Or they may be so poorly represented by defense attorneys that the prosecutor manages to convince them that they will be found guilty of more serious charges if they do not plead to the lesser ones. Granted, any humanly devised and administered criminal justice system will punish some innocent individuals. But charge bargaining appears to increase, rather than decrease, the likelihood of such injustices in addition to diminishing the scope of retributive justice.

In similar ways, sentence bargaining may foreseeably lead some factually innocent defendants to plead guilty, contrary to the Principle of Accurate Sorting. Yet some defend it on the grounds that innocent individuals are likely to negotiate reduced sentences, which is surely preferable to forcing them to go to trials wherein some of them will be found guilty and receive harsher sentences. (18) Even if we grant this defense of sentence bargaining for the time being, it is clear that the practice conflicts with the Principle of Proportionality. Again, the evidence is that defendants who negotiate pleas receive sentences that are from twenty-five to seventy-five percent lighter than those who are convicted of the same offenses after trials. Yet such significant disparities raise problems of both ordinal and cardinal proportionality. As we have seen, retributivists might agree that there should be modest sentence ranges for any given type of offense. But the kinds of disparities that plea bargaining yields seem likely to exceed those allowed by such sentencing ranges. This means that two defendants convicted of the same offense, one of whom pleads guilty in exchange for a reduction and the other of whom is found guilty after a trial, may receive vastly different sentences--so different, in fact, that it will be as if they were convicted of two very different offenses.

In addition, the sentence ranges that retributivism supports are premised on the notion that a given type of crime may produce a range of harms, some of which are considerably worse than others, or exhibit different degrees of offender culpability. Yet negotiated pleas seem unlikely to yield sentences that are related in any very systematic way to such factors. Rather, they are more likely to reflect such things as the defense attorney's skill or experience, whether defendants are free on bail or not, or prosecutors' perceptions of the strength of the case against defendants or the political importance of securing their conviction. (19) However, none of these factors, should, if we are concerned with the harm and culpability of offenses, determine the sentences that convicted offenders receive.

Again, cardinal proportionality may be a more difficult notion to specify in practice, but extreme disparities in sentences as between those who negotiate pleas and those who are convicted at trial will be suspect along this dimension as well. As Oren Gazal-Ayal notes, there appear to be instances in which prosecutors offer the accused very favorable terms in exchange for pleas. (20) This is especially true in cases in which prosecutors believe that the evidence against the defendants is weak and there are no political or other pressures to go to trial. In such cases prosecutors might agree to a minimal sentence in exchange for a guilty plea. Yet if the defendants in such cases are factually guilty, they may receive sentences that fall well short of what they deserve in some absolute sense.

Plea bargaining also seems contrary to the Principle of Censure. Given that the vast majority of criminal cases are disposed of through it, it is hard to avoid the conclusion that the overwhelming message thereby conveyed by the criminal justice system is that crime has a price that is subject to considerable negotiation. What charges will be pursued against defendants and what sentences will be assigned to them are all matters to be worked out. If one can get a knowledgeable, experienced, or well-connected defense lawyer, one can probably get a better deal. The same is true if one is less averse to risk and thus more willing to refuse initial prosecution offers. (21) The legal consequences of crime become a complex game of threats, offers, counteroffers, bluffing, and one-upmanship. In such a process, defendants have an interest in admitting as little guilt as possible. Add to this the fact that many socially deprived defendants will already have an external perspective on the criminal law. (22) They will balk at regarding it as providing legitimate norms for their conduct, viewing it instead as merely presenting obstacles or threats to the satisfaction of their desires. Plea bargaining would seem to reinforce the perception that punishment is simply a price that the law exacts for prohibited conduct--and one subject to negotiation--rather than a justified expression of the community's moral disapproval of such conduct. When such defendants do finally plead guilty before a judge after a deal has been reached with prosecutors, it will seem that they are simply playing their parts in a complicated charade that is encouraged and abetted by the criminal justice system.

It is no use responding to the preceding concern by arguing that some defendants negotiate pleas because they feel remorse for their crimes and wish to get on with their punishments. First, this will probably be true for only a subset of them. And for those of whom it is true, the obvious thing for them to do is to confess to all of their crimes and throw themselves on the mercy of the court, not negotiate over which ones they will be charged with or what sentences they will receive. A willingness to negotiate, or worse, an insistence that the prosecution negotiate, belies genuine remorse and a desire to embrace one's punishment as deserved.

Neither will it help to argue that plea bargaining is reasonable in cases in which defendants are unsure about whether they are guilty or whether the prosecution can establish their guilt beyond a reasonable doubt, or in cases where the prosecution is unsure about its ability to prove guilt beyond a reasonable doubt. No doubt all of these kinds of cases occur with some frequency, but there are alternatives to plea bargaining and the market mentality it promotes. In cases in which defendants are unsure of their guilt or the prosecution's ability to establish it, the prosecution could be encouraged to lay out its case in some detail. (23) In that way defendants could reasonably determine whether risking a trial or pleading guilty is the best option for them. In cases in which prosecutors are uncertain about their ability to establish defendants' guilt, the solution would be to have the attorneys on both sides present their respective cases. In that way the prosecution could make a more informed decision about whether to try or drop the charges. The fact that some legal systems may not encourage this kind of openness as between defendants (or their representatives) and prosecutors, or the more elaborate discovery by parties on both sides that might be necessary to facilitate it, may show only how far they have strayed from an ideally retributive criminal justice system concerned to censure crimes because they (or many of them) are wrongful acts. Arguably, legal systems that encourage (or require) more open, honest communication between prosecutors and defendants would convey very different messages about crime and punishment than ones that permit and even encourage plea bargaining, with all of its tactics and gamesmanship. Instead of serious efforts to find out what happened or who broke what laws, legal systems that rely extensively on plea bargaining seem content to tell defendants and prosecutors to get the best deals that they can.

III Retributive Constraints on Plea Bargaining

In spite of the problems with plea bargaining outlined in the previous section, I am not convinced that a retributive approach to the justification of legal punishment must reject it altogether. In this section I outline various retributive constraints on plea bargaining and respond to objections to them.

First, consider sentence bargaining, where defendants agree to plead guilty to some charge or charges in exchange for recommendations of reduced sentences. It seems clear that retributivists would want to place strict limits on the abilities of prosecutors to offer reduced sentences, limits determined by the sentence range for any given type of offense. So long as defendants were offered sentences somewhere within the relevant sentence range, the outcomes would not so obviously violate the Principle of Proportionality. Yet even this is too quick, since, as we have seen, such retributive sentence ranges are predicated on the idea that the same general type of crime may produce variable harms or exhibit differing degrees of culpability. Prosecutors should not, it seems, ignore these two factors in offering defendants reduced sentences in exchange for guilty pleas. They should not, for instance, offer a sentence at or near the bottom of the sentence range when it is clear that the offense in question was so harmful or involved such culpability as to merit a sentence at the top end of the range. This means that retributivists would leave prosecutors with only limited discretion to negotiate pleas. Such limited discretion might also promote accurate sorting, for as Gazal-Ayal persuasively argues, the availability of greater discretion--and in particular the ability of prosecutors to offer steep sentence discounts---exacerbates the problem of the factually innocent agreeing to guilty pleas. (24) Again, prosecutors are more apt to offer steep discounts in instances in which they sense that a case is weak. Yet it is in precisely these kinds of cases that the proportion of factually innocent defendants is likely to be greater. Thus, limiting sentence discounts would bring the criminal justice system more in line with both the Principle of Proportionality and the Principle of Accurate Sorting.

It has been suggested that prosecutors should have no discretion at all to offer reduced sentences in exchange for guilty pleas, that those who plead guilty should instead be given fixed discounts. (25) Whether such guilty pleas would be more apt to reflect genuine remorse on the part of defendants is anyone's guess, but such a system would seem to do less by way of encouraging the bartering mentality currently so prevalent in some criminal justice systems, since there would be little to bargain over. Such a system could be enhanced by some of the changes mentioned in the previous section, in which prosecutors and defense attorneys were encouraged to engage in more open, honest exchanges about their respective cases. Defendants would thereby acquire a better sense of the strength of the evidence against them and prosecutors could better gauge their chances of success at trial. In some instances, the accused would be led to plead guilty and accept their fixed discounts; in others, prosecutors would conclude that charges should be dropped. But defendants and prosecutors would both know that they could not bargain about sentences, and thus the fixed discount scheme might seem more in accordance with the Principle of Censure than the limited sentencing discretion scheme outlined above. Still, the limited sentencing discretion scheme would offer neither prosecutors nor defendants much negotiation room--certainly nothing like what they currently have in many cases. Thus, it would not encourage much bartering. And the fixed discount scheme might have the disadvantage of making it more difficult for prosecutors to adjust sentences to reflect the degree of criminal desert manifested by crimes. There may be cases in which two defendants charged with the same offense should nonetheless be sentenced differently because one caused much more (foreseeable) harm or acted more culpably than the other or both. Permitting prosecutors limited discretion would, in such cases, enable them to offer sentences to the two offenders that better tracked their ill deserts.

It has been objected that a fixed discount system is, in practice, unworkable because prosecutors and defense lawyers would find ways to subvert it, even if they had to do so surreptitiously. (26) Specifically, it is claimed that prosecutors and defense lawyers would engage in charge bargaining if they were prohibited from sentence bargaining. This objection might also be made against a system that afforded prosecutors limited discretion. Yet the objection presupposes the legitimacy of charge bargaining, which, as we have seen, has dubious retributive credentials. If charge bargaining were prohibited, then the unworkable character of fixed sentence discounts or limited prosecutorial sentencing discretion would be less obvious.

However, there may be instances in which charge bargaining, or something like it, is justifiable. I have suggested that we might adopt a more open, honest adjudicative process in which prosecutors and defense lawyers exchange information about their respective cases in the hopes of attaining case outcomes that are more accurate with regard to guilt or innocence and proportionality. One outcome of such an adjudicative process might be that prosecutors would come to see that the initial charges they brought against defendants in some cases are likely unsustainable in court, though some other charges might still be made to stick. Surely we do not want to rule out prosecutors adjusting charges in this way once they have a better sense of the strengths and weaknesses of their cases against defendants. Although that seems correct, it is important to notice that such adjustments do not really amount to charge bargaining in the classic sense, in which prosecutors agree to drop (of not add further) charges in exchange for guilty pleas on other charges. Here the charge adjustment is in response to a revised assessment of the strength of the case supporting the original charges. Granted, in practice, it will be difficult to determine why prosecutors have dropped or adjusted charges, so it may be hard to police such decisions to see whether they are the result of honest reassessments of cases by prosecutors or deals worked out with defendants' attorneys. One way to discourage the latter would be to require prosecutors to state in writing for the public record why charges initially filed were being dropped or altered (or why additional charges were being added). We could also deny prosecutors the authority to unilaterally drop charges by having the final decision about charges rest with judges, as is done in some European countries. In this way we could make better oversight of such decisions possible. Furthermore, prosecutorial ethics guidelines could be developed that would emphasize the distinction between the honest reassessment of cases and agreements to drop, not pursue, or add charges in exchange for guilty pleas on other charges. The former would be permitted or even encouraged; the latter would be discouraged.

There are two other kinds of cases in which limited forms of charge bargaining might seem defensible on a retributive approach. One involves cases in which prosecutors are genuinely uncertain about whether they could secure convictions of defendants were they to go to trial. Prosecutors might suspect that a crucial piece of evidence would not survive an exclusionary rule challenge or a vital witness for the prosecution would prove unconvincing if put on the stand. For the sake of argument, assume also that the guilt of the defendants in such cases is fairly certain. Hence, they would be acquitted only because of legal rules that permit defense attorneys to exclude evidence or impeach the testimony of witnesses. If we are going to worry that plea bargaining will sometimes result in pleas by factually innocent persons, should we not also worry that some factually guilty persons will escape punishment because of the procedural requirements of the criminal law? Hence, if factually guilty defendants would plead to reduced charges, would not the Principle of Scope counsel prosecutors to consider such settlements? At least defendants would be punished for something rather than not punished at all, the latter of which might occur if trials on the original charges produced acquittals. One suspects that these kinds of plea agreements are not uncommon in practice. Also, consider cases in which prosecutors are reasonably sure that they could secure convictions at trial but are willing to negotiate settlements to avoid trials that they believe will be extremely costly and time-consuming. Again, if defendants would plead to reduced charges, would not such settlements be defensible in the interests of freeing up more prosecutorial resources to be used in pursuing a larger group of offenders (in accordance with the Principle of Scope)?

In the first kind of case, considerations of accurate sorting weigh against giving prosecutors unfettered authority to negotiate pleas to charges that are substantially unrelated to the initial ones. While retributivists want more rather than fewer guilty individuals punished, and the guilty accurately separated from the innocent, they also want the guilty to be punished for the crimes they actually committed, at least within reason. True, retributivists might have to make some concession to considerations of scope in the kinds of cases under consideration. Perhaps they should accept settlements to charges that are closely related to the initial ones. For instance, it might be appropriate for a prosecutor to offer a defendant charged with first-degree murder a settlement whereby the latter would plead to second-degree murder. But a prosecutorial offer of a manslaughter plea in such a case would be more problematic, and one to negligent homicide more problematic still. At some point, negotiated guilty pleas to wholly unrelated (and typically much less serious) charges would make such a mockery of justice that retributivists would forgo them even if this meant that some guilty defendants would not be punished at all. Such an outcome might not please those who lean toward a crime reduction approach to punishment's justification. But the concern to do justice is distinct from that of reducing crime by incapacitating, for some period of time, offenders who are (perhaps correctly) perceived to be dangerous.

The second kind of case, in which prosecutors are reluctant to go to trial because of the toll on their resources that doing so might exact, is also, one suspects, fairly common in practice. Yet their reluctance might be partly a function of their not being provided sufficient resources to do their jobs effectively. As we have seen, retributivists should support adequate levels of funding for prosecutors. Of course, even in a world in which we were more generous about providing both prosecutors and public defenders the resources needed to perform their functions, there would inevitably be some constraints on how generous we could afford to be. Again, the pursuit of criminal justice is not the only responsibility of contemporary liberal democratic societies. Hence, some trade-offs by prosecutors might have to be contemplated and it would seem unreasonable to insist that they proceed to trial regardless of the burdens doing so imposes on them. Nonetheless, if we are to avoid problems with accurate sorting and disproportionate sentences, it seems that any pleas offered by prosecutors in order to avoid costly trials should be in accordance with the limits already discussed. This means that pleas should be offered only on closely related charges and the sentences assigned as a result should be in the desert range. Moreover, we might question why prosecutors would file charges knowing that they lack the resources to follow through on them. If prosecutors are short on resources, the more defensible course would be to focus them on serious crimes, rather than charging a larger group of defendants, some of whom they hope to avoid trying by plea bargaining.

Permitting such limited scope for charge bargaining, along with restricting sentence bargaining to fixed discounts or adjustments within the desert range, would do much to reinvigorate the censuring dimension of legal punishment. Where there is relatively little room for negotiation, prosecutors and defense lawyers would have considerably reduced incentives to engage in it. Even under schemes in which prosecutors would have limited discretion to negotiate charges or sentences, we could encourage their primary focus to be on adjusting sentences so that they more accurately reflect the harm and culpability of offenses. Other changes I have recommended, such as prolonged or more vigorous discovery by both sides and open, honest exchanges of information about the strengths and weaknesses of prosecution and defense cases, would aim at accurate sorting and proportionate sentences. Offenders would quickly perceive the implications of these changes, in particular the likelihood that they would have to serve proportionate sentences for any crimes for which they were convicted or pled guilty.

No longer would there be the implicit invitation, as there arguably is under current plea bargaining practices, to commit crimes and then see what kind of deal can be struck. Defendants with more knowledgeable or well-connected attorneys, or ones who were more inclined to take risks in negotiations, would not stand to be rewarded under the proposed scheme. Crime would look more like the serious matter it often is, one regarding which there was little room for compromise.

This brings us to an important objection to proposals to greatly reduce sentence and charge bargaining. In response to the objection that these practices are contrary to the Principle of Accurate Sorting, it has been argued that the elimination or curtailment of plea bargaining would mean that some factually innocent persons who went to trial would be convicted and would receive harsher sentences than they would have had more substantial charge or sentence bargains been available. Hence, eliminating or substantially reducing plea bargaining would leave these defendants worse off, and it is alleged that no clear-thinking retributivist should be happy with such an outcome. (27)

However, the only way to eliminate the conviction of all factually innocent defendants would be to altogether do away with legal punishment and its constitutive practices. The choice we face, therefore, is between a criminal justice system with more extensive plea bargaining, with its potential impact upon factually innocent defendants, and one without it or with greatly reduced plea bargaining, with its potential impact upon those same defendants. The former appears to have the potential to give us more--perhaps many more--wrongly punished persons, whereas the latter has the potential to give us fewer such persons but more harshly punished ones. Which should retributivists prefer? I contend that the latter system is more in keeping with the Principles of Accurate Sorting and Proportionality. If we adopt either a fixed discount scheme for guilty pleas or a limited prosecutorial discretion scheme with regard to sentencing, while limiting charge bargaining in the ways outlined above, then any factually innocent defendants convicted after trials would not receive dramatically harsher sentences than those who pled guilty. And they would receive sentences that were proportional to the seriousness of the offenses for which they were (admittedly, wrongly) convicted. True, their sentences would be harsher than those assigned to defendants who (wrongly) pled guilty under a system that permitted more robust plea bargaining. But such a system seems less in keeping with the Principle of Accurate Sorting, since more factually innocent defendants will be punished under it. And such a system accords less well with the Principle of Proportionality for, as we have seen, it is a feature of systems that permit robust plea bargaining that they produce much wider variations in sentences. In cases in which prosecutors have wide discretion to reduce sentences, lots of defendants who plead guilty will be punished in ways that may violate ordinal or cardinal proportionality. Ironically, even those factually innocent defendants who plead guilty under such a scheme will often receive sentences that are disproportionate (typically, unduly lenient) with the seriousness of their "offenses." Moreover, the differences in sentences between those who plead guilty (but who are innocent) and those who go to trial and are wrongly convicted will likely be greater under such a scheme, again in violation of ordinal proportionality.

To the preceding I would add that we could reduce the number of factually innocent defendants convicted under a limited plea bargaining scheme by altering other features of the criminal justice system. In addition to the more open, honest adjudicative process sketched earlier, we could provide both prosecutors and those who represent defendants with more resources to investigate charges and, in the case of defense lawyers, challenge the state's cases against their clients. We could also, following the approach in some European countries, require the courts to scrutinize more closely the factual basis for guilty pleas. We should not assume, in other words, that our choice is one between the current system and a system with substantially reduced room for plea bargaining, in which the latter would involve no other changes. Again, the Principle of Accurate Sorting provides strong support for equipping both sides in the adversarial process with the resources necessary to do their jobs, so that the innocent can be effectively separated from the guilty. It would also support more oversight by the courts to ensure that there is a factual basis for guilty pleas.

A further objection to substantial curtailment of both sentence and charge bargaining will be that the current scheme gives us more scope, even if it does not fare as well at accurate sorting or proportionality. For under the current scheme, it is at least true that many factually guilty defendants receive some punishment for their crimes. If sentence and charge bargaining were greatly limited, it is plausible to believe that fewer defendants would plead guilty, thus necessitating either trials of the forgoing or dropping of charges because prosecutors (and the courts) would be overwhelmed by the number of cases to be tried. In either case, the scope of punishment would be considerably reduced.

Yet as we have seen, retributivists should not approve of expanded scope if it comes at the expense of substantial loss of accurate sorting. Again, it is not better, from the standpoint of justice, for more rather than fewer guilty individuals to be punished if those punished are punished for crimes that are significantly unrelated to the ones they actually committed. Granted, if somewhat expanded plea bargaining resulted in considerably greater scope with only some loss of accurate sorting, a decision about how to balance the two would be more difficult. I would not deny that there is the potential for some tension between scope and accuracy, or scope and proportionality, even if we think that scope is a lower priority than either. The extent to which this potential is realized will depend, at least in part, on how many resources we devote to the pursuit of criminal justice. We can enhance the scope of the criminal justice system by increasing the resources that police, prosecutors, and the courts have at their disposal. Doing so, as we have seen, may also strengthen the ability of the system to sort accurately the guilty from the innocent. It may be true that if we were to substantially curtail plea bargaining under the current scheme, with no other changes, then scope would be lost. Yet that loss could be ameliorated in other ways that do less than robust plea bargaining schemes to jeopardize accurate sorting and proportionality.

Fortunately, we may rarely know with sufficient clarity the exact nature of any trade-offs we face among the guiding principles, especially at the aggregate level where we are comparing different criminal justice systems with different organizing rules and practices. But there may be specific cases in which the tensions between the principles present themselves. Consider the following: Suppose that we have arrested and charged someone who is a member of an ongoing criminal organization that routinely has its members commit quite serious offenses. Suppose also that the organization in question is very difficult to penetrate. Police attempts to infiltrate it and gather evidence to charge and convict its members have repeatedly failed. But now they have in their grips someone who is willing to help them secure the convictions of numerous members of the criminal organization in exchange for a guilty plea to substantially reduced charges (given what the prosecutors could reasonably hope to convict him of) or a substantially reduced sentence (one disproportionate with the severity of the charges to which he will plead). What should retributivists say in such a case? It may not be possible to avoid the dilemma by insisting that the police redouble their efforts to infiltrate or otherwise gather evidence against the organization. Past efforts have failed miserably and there may be no reason to believe future ones will fare any better. If retributivists insist on adherence to the Principle of Proportionality, then they will lose the opportunity to put the organization out of business, or to at least cripple its operations. If the crimes its members commit are grave enough, should not a deal be offered? (28)

As it will facilitate discussion to have a name for such cases, I will term them "necessity" cases. They are ones where we may well feel it necessary to sacrifice some proportionality or accurate sorting for scope. One thing to notice about such necessity cases is that they may not involve a conflict between scope and, say, proportionality. If a deal is struck with the defendant to reduce the charges against him in exchange for his cooperation in securing the conviction of others in the organization, then some scope is sacrificed in his case in order to increase scope in other cases. But let us simplify a bit and suppose that all he will get in exchange for his cooperation is a reduced sentence that falls considerably below what proportionality (either ordinal or cardinal) requires. In the abstract, I am not convinced that retributivists should reject negotiated pleas in necessity cases. Much will depend on what other options exist for apprehending and convicting the other members of the organization and how bad or numerous their crimes are. We can imagine bleak enough scenarios that would make even the most stalwart retributivist proponent of proportionality squirm. The practical problem, of course, is that it will be very difficult to cabin plea bargaining so as to limit it to such necessity cases. It may be possible to articulate criteria of necessity to guide and constrain prosecutors, but how successful we could be in enforcing them is difficult to say. Perhaps judges could be charged with overseeing the activities of prosecutors to ensure that they engaged in such negotiations only in the specified range of cases. (29) The important point is that the existence of such (presumably rare) cases should not be taken as a sign that scope and proportionality are always or usually in tension. In many if not most cases they will not be, so prosecutors might reasonably be seen as having only limited discretion to negotiate with charged defendants in those cases.

IV Concluding Remarks

It appears that contemporary plea bargaining practices diverge significantly from retributive requirements that legal punishment should fall only on the guilty, in proportion to the severity of their crimes, and that it should convey censure for conduct that is wrongful. This divergence might be explained by the fact that criminal justice policy is not really shaped by retributive concerns. Yet this seems too quick, since one does not have to search very far or wide to find agents within the criminal justice system, or ones whose decisions shape it, defending punishment on the grounds that it gives offenders what they deserve. Moreover, though I have not examined the extent to which other aims of punishment--most prominently that of reducing crime are served by contemporary plea bargaining practices, it is not obvious that they are. (30) Sophisticated versions of the crime reduction approach will also look to craft criminal justice institutions that ensure sufficient scope while accurately sorting the innocent from the guilty, proportionally punishing the latter, and censuring them for their conduct. Of course, the reasons crime reductionists will give for doing all of these things will differ somewhat from those offered by retributivists. But crime reductionists will be reluctant to eschew such guiding principles, and this means that they too may have to worry about the extent to which plea bargaining is at odds with them.

It is likely that current practices have evolved gradually as matters of expedience rather than because they were believed vital to securing defensible penal aims. As those who write about such practices show, both prosecutors and defendants have powerful motivations to resort to plea bargaining, ones which often have little to do with ensuring that offenders get what they deserve or aim at optimally reducing crime. I have not argued that plea bargaining should be altogether eliminated. Nonetheless, the restrictions on it I advocate will likely be thought too severe to be practicable. Perhaps so, but then it would be more honest to admit that the practice of criminal justice is more remotely and tenuously related to giving offenders what they deserve than many of us already worry that it might be.

NOTES

(1) See Oren Gazal-Ayal, "Partial Ban on Plea Bargains," Cardozo Law Review (March, 2006): 2295-2349, at 2311.

(2) See Kenneth Kipnis, "Criminal Justice and the Negotiated Plea, Ethics 86 (1976): 93-106; Alan Wertheimer, "The Prosecutor and the Gunman," Ethics 89 (1979): 269-79, and "Freedom, Morality, Plea Bargaining, and the Supreme Court," Philosophy and Public Affairs 8 (1979): 203-34; Michael Gorr, "The Morality of Plea Bargaining," Social Theory and Practice 26 (2000): 129-51; and Joan L. McGregor, "The Market Model of Plea Bargaining," Public Affairs Quarterly 6 (1992): 385-99.

(3) In addition to the article by Gazal-Ayal cited in note 1 above, see, among others, Albert Alschuler, "Plea Bargaining and Its History," Columbia Law Review 79 (1979): 1-43; Stephen Schulhofer, "Plea Bargaining as Disaster," Yale Law Journal 101 (1992): 1979-2009; Frank Easterbrook, "Plea Bargaining as Compromise" Yale Law Journal 101 (1992): 1969-78; and Stephanos Bibas, "Plea Bargaining Outside the Shadow of Trial," Harvard Law Review 117 (2004): 2463-2547.

(4) Kipnis does briefly discuss the apparent conflict between retributivism and plea bargaining in "Criminal Justice and the Negotiated Plea," 103-105.

(5) See, among others, Bibas, "Plea Bargaining Outside the Shadow of Trial," 2470-2519.

(6) The figures on the reduced sentences defendants who plead guilty receive comes from Schulhofer, "Plea Bargaining as Disaster," 1993.

(7) Contemporary retributive theories generally split into two camps--unfair advantage and communicative versions of the theory. For the former, see Herbert Morris, "Persons and Punishment," Monist 52 (1968): 475-501; Jeffrie Murphy, "Marxism and Retribution," Philosophy and Public Affairs 2 (1973): 217-43; Wojciech Sadurski, Giving Desert Its Due (Dordrecht, Netherlands: D. Reidel, 1985); and George Sher, Desert (Princeton, N. J.: Princeton University Press, 1987), 69-90. For communicative versions, see Jean Hampton, "A New Theory of Retribution," in R. G. Frey and Christopher W. Morris, eds., Liability and Responsibility: Essays in Law and Morals (Cambridge: Cambridge University Press, 1991), 377-414; R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986); and Jami L. Anderson, "Annulment Retributivism: A Hegelian Theory of Punishment," Legal Theory 5 (1999): 363-88.

(8) I develop this claim in further detail in my "Diminished Opportunities, Diminished Capacities: Social Deprivation and Punishment," Social Theory and Practice 29 (2003): 459-85.

(9) On the claim that retributivism presupposes that those liable to punishment must be capable of moral self-restraint, see Jeffrie Murphy, "Moral Death: A Kantian Essay on Psychopathy," reprinted in his Retribution, Justice, and Therapy (Dordrecht: D. Reidel, 1979): 128-43, at 136.

(10) A point stressed by Schulhofer in "Plea Bargaining as Disaster," 1988-1990. He notes (at 1989) that a 1986 survey found that compensation caps of $500 or $1000 were common for appointed counsel, with some state enforcing $1000 caps even in capital cases.

(11) Cf. R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), 159.

(12) Kipnis, "Criminal Justice and the Negotiated Plea," 102.

(13) For the distinction between ordinal and cardinal proportionality, and the complications with each, see Andrew von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993), 29-46. See also his "Proportionality in the Philosophy of Punishment," in Crime and Justice: A Review of Research 16 (1992): 55-98.

(14) Von Hirsch argues for narrower ranges in Censure and Sanctions, 47-56, and against Norval Morris, who argues for wider ranges. For Morris's account, see his Madness and the Criminal Law (Chicago: University of Chicago Press, 1982), especially Chapter 5.

(15) For a defense of the exclusionary rule, see Yale Kamisar, "The Struggle to Make the Fourth Amendment More Than an Empty Blessing," Judicature 62 (1979): 337-50. Still, if there are other ways to protect privacy without dismissing evidence that helps establish the guilt of individuals, then retributivists might endorse them rather than the exclusionary rule on grounds of both scope and accurate sorting.

(16) Though there is disagreement among comparative legal scholars about the extent to which some European countries limit prosecutorial authority. For useful overviews, see Richard S. Frase, "Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care," California Law Review 78 (1990): 539-683, and Thomas Weigend, "Continental Cures for American Ailments: European Criminal Procedure as a Model for Law Reform," Crime and Justice 2 (1980): 381-428.

(17) As detailed by, among others, Schulhofer in his "Plea Bargaining as Disaster," 1981-82.

(18) See Gorr, "The Morality of Plea Bargaining," 140-41.

(19) Again, see Bibas, "Plea Bargaining Outside the Shadow of Trial," 2470-2520.

(20) Gazal-Ayal, "Partial Ban on Plea Bargains," 2303-11.

(21) See Bibas, "Plea Bargaining Outside the Shadow of Trial," 2498-2512.

(22) The distinction between an internal and an external perspective on rules of law comes from H. L. A. Hart, Tire Concept of Law (Oxford: Clarendon Press, 1961), 55-56.

(23) Bibas proposes this as a partial solution to some of the problems raised by plea bargaining in "Plea Bargaining Outside the Shadow of Trial," 2531-32.

(24) Gazal-Ayal, "Partial Ban on Plea Bargaining," 2307-13.

(25) See Schulhofer, "Plea Bargaining as Disaster," 2003-08.

(26) Bibas, "Plea Bargaining Outside the Shadow of Trial," 2536-37.

(27) Gorr, among others, makes this argument in "The Morality of Plea Bargaining," 140-41.

(28) Alschuler argues that in cases where prosecutors offer pleas to defendants in exchange for information from them that can be used to solve other crimes that this should not really count as plea bargaining. First, in such cases, prosecutors are not in any way compelling defendants to incriminate themselves. Second, though there is a right against self-incrimination, there is not one against incriminating others--in fact, incriminating information about others can be compelled. Third, Alschuler thinks that there is a difference between offering a reduced sentence in order to save the government the time, expense, and risk of a trial and offering one to bring others to justice. See his "Plea Bargaining and Its History," 4-5. I am not convinced that much turns on whether we call such agreements plea bargaining or not. It seems clear that they raise very similar problems with regard to scope, accurate sorting, and proportionality that other agreements do.

(29) Gazal-Ayal makes a similar suggestion concerning the need for judicial oversight of the sentence discounts offered by prosecutors in plea bargaining. See his "Partial Ban on Plea Bargaining," 2313.

(30) Wertheimer raises the possibility that plea bargaining may undermine the deterrence and incapacitative effects of punishment, in "Freedom, Morality, Plea Bargaining, and the Supreme Court," 232.

Richard L. Lippke, author of Rethinking Imprisonment (in press), is Professor of Philosophy at James Madison University.
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