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

36 Pages Posted: 24 Mar 2015 Last revised: 20 Dec 2016

Date Written: March 23, 2015

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

Suggested Citation

Slobogin, Christopher, Plea Bargaining and the Substantive and Procedural Goals of Criminal Justice: From Retribution and Adversarialism to Preventive Justice and Hybrid-Inquisitorialism (March 23, 2015). William & Mary Law Review, 2015, Vanderbilt Public Law Research Paper No. 15-4, Available at SSRN: https://ssrn.com/abstract=2583898

Christopher Slobogin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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