Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism

Abstract

Plea bargaining is incompatible with both retributivism and adversarialism, the major substantive and procedural goals of American criminal justice. It undermines retributivism because it posits that an offender “deserves” at least two punishments, and it undermines adversarialism because it eliminates trials. Thus, either plea bargaining should be prohibited, or the system’s goals should be changed. This article imagines a system in which retribution is no longer the lodestar of punishment and party-control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution (as in the salad days of indeterminate sentencing), and if it were filtered through a system that is inquisitorial (i.e., judicially-monitored) rather than run by the adversaries, it would have a much greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.

Keywords: plea bargaining, sentencing, retribution, preventive justice, adversarialism, inquisitorialism