27 Pages Posted: 10 Aug 2007 Last revised: 20 Aug 2013
In its efforts to establish a genuine, participatory role for victims in the criminal process, the victims' rights movement has properly focused its attention on plea bargaining as a crucial locus of decisionmaking in the criminal justice system. Prompted by victims' advocates, many jurisdictions have adopted consultation requirements, mandating that prosecutors seek input from victims before consummating deals with defendants. Such requirements have been criticized on grounds of both principle (victims are not parties to criminal litigation, which exists to serve public interests in crime control and just punishment, not private interests in vengeance or compensation) and practical efficacy (consultation is costly and promotes expectations of decision control among victims that cannot be fulfilled). Against the former objections, and in light of social psychology research on procedural justice, this Article suggests reasons why victim participation in plea bargaining may actually advance, rather than undermine, public interests in crime control and just punishment. The Article further proposes, as a complement to mandatory consultation, the adoption by prosecutors of publicly available charging and plea-bargaining guidelines. Such guidelines may helpfully address the practical efficacy objections to mandatory consultation. They may also make an important contribution in their own right to victims' perceptions of procedural justice.
Keywords: plea bargaining, victims' rights, procedural justice, mandatory consultation, guidelines
JEL Classification: K14, K41
Suggested Citation: Suggested Citation
O'Hear, Michael M., Plea Bargaining and Victims: From Consultation to Guidelines. Marquette Law Review, Vol. 91, No. 1, 2007; Marquette Law School Legal Studies Paper No. 07-06. Available at SSRN: https://ssrn.com/abstract=1005373
By Scott Howe
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