Private Plea Bargains
Ohio State University (OSU) - Michael E. Moritz College of Law
April 1, 2010
North Carolina Law Review, Vol. 89, 2011
This article analyzes the phenomenon of private criminal settlements; that is, settlements in which the victim or witness agrees not to report the perpetrator to the police in exchange for some consideration on the part of the perpetrator. The article first examines why these settlements occur and then determines whether or not they should be permitted, and if so, under what circumstances.
There are two different paradigms that can be used in analyzing private criminal settlements. The first paradigm, which has been used by scholars who have previously considered this issue, has been to treat these settlements as a form of blackmail. Legislatures in every state have also used this paradigm to criminalize private criminal settlements. But as the article points out, the justifications for criminalizing these agreements under a blackmail paradigm turn out to be particularly weak.
The article goes on to analyze private criminal settlements under a different paradigm, by treating them as the private analogue to public plea bargains. Using this analysis, the true cost of these agreements becomes apparent. Public plea bargains have long been criticized as providing a sort of second-class justice, but many scholars have also concluded that the process of plea bargaining brings certain benefits to the criminal justice system. The article applies the critiques of plea bargaining to private criminal settlements, and concludes that private settlements share all the drawbacks and costs of public plea bargains, while providing almost none of the benefits.
The article ends by discussing the implications of this analysis for current laws regarding private criminal settlements. It concludes that private criminal settlements should remain criminalized, but with one significant exception: settlements made between individuals who had a pre-existing relationship should be permitted.
Number of Pages in PDF File: 81
Keywords: private criminal justice, blackmail
Date posted: June 11, 2010