Plea Bargaining in the Shadow of the Constitution

30 Pages Posted: 2 Sep 2013 Last revised: 3 Nov 2013

Date Written: January 15, 2013


My aim in this discussion is to show how the Supreme Court might have argued that plea bargaining, as it currently exists in the United States, is contrary to well-established and broadly-accepted constitutional values respecting the adjudication of criminal charges. By “constitutional values” I mean ones that any plausible reading of the Constitution, along with its history of interpretation, establishes as basic to the operations of the U.S. criminal justice system. Most prominent among these values are the presumption of innocence, the burden of proof on the government in criminal cases, the high standard of proof the government must meet to convince fact-finders of the guilt of criminal defendants, the right to an orderly and public trial by an impartial tribunal, and the necessity of protecting those accused of crimes from measures designed to coerce admissions of guilt from them. Contrary to what Justice Scalia claims, I contend that plea bargaining is in the Constitution, if being in it means that salient constitutional values have implications for how it should be structured and regulated. Current plea bargaining practices are contrary to those values. Rather than tinkering further with what effective assistance requires of defense counsel in plea cases, the Court should take the bold step of indicating that the existing plea system is constitutionally defective. Fortunately, the Court could, at the same time, articulate a set of principles for the reform of plea bargaining. Though such principles might not entirely dictate the acceptable contours and limits of plea bargaining, they would point toward ways in which it should be significantly restrained.

Keywords: plea bargaining, sentencing differential, burden of proof

Suggested Citation

Lippke, Richard, Plea Bargaining in the Shadow of the Constitution (January 15, 2013). Duquesne University Law Review, Vol. 51, 709-34, 2013, Available at SSRN:

Richard Lippke (Contact Author)

Indiana University ( email )

Department of Criminal Justice
Bloomington, IN
United States
812-856-6049 (Phone)

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