A Moral Defense of Plea Bargaining

Abstract

This paper argues that the critics' best case fairly stated against plea bargaining fails in its own terms to show that plea bargaining is necessarily unjust or injustice-tending. Critically, this paper argues against plea-bargaining's critics without resorting to the typical pro-plea-bargaining arguments about efficiency or the value of choice. Plea-bargaining may be efficient as a means of deterring crime and saving prosecutorial resources, but, even if so, that fact would not redeem plea-bargaining if it were, as the critics claim, unjust. Or, plea-bargaining may realize the defendant's rational choice, but where it is sensible to ask whether those very choices should be in the first place thrust upon the defendant, an appeal to choice in this way begs rather than answers the moral question raised by the critic. If it is to be answered at all, the moral case against plea bargaining must be answered in the terms of the critics' real moral concern without resort to the usual poor arguments, and this paper provides that better moral answer by focusing on several key critical arguments. Specifically, this paper offers original arguments challenging the critical claims that plea bargaining leads to the conviction of too many innocents (the "innocence problem"); that it is necessarily coercive or tending towards coercion; and that it inequitably leads to the unlike treatment of like cases (the "trial penalty" problem).

Keywords: plea bargaining, plea-bargaining, innocence problem, trial penalty, coercion, wrongful conviction of innocents, criminal law, coercion, equality, justice, ethics of plea-bargaining, legal ethics, criminal law ethics

JEL Classification: A12