Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias
19 Pages Posted: 9 Aug 2010 Last revised: 27 Jul 2011
Date Written: February 14, 2011
In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.
Keywords: efficiency, equality, autonomy, transparency, prosecutors, plea bargaining, negotiation, ABA Model Rule 3.8s
JEL Classification: K40
Suggested Citation: Suggested Citation