Guilt, Innocence, and Due Process of Plea Bargaining

35 Pages Posted: 17 Oct 2015

See all articles by Donald A. Dripps

Donald A. Dripps

University of San Diego School of Law

Date Written: October 15, 2015

Abstract

Threatened decades of imprisonment can exert more behavioral pressure than coercive police interrogation. Normative distinctions between confessions and guilty pleas offered in the Supreme Court's jurisprudence, and the academic literature, are unsound. Ergo catastrophic trial penalties should be subject to the narrowest version of the due process doctrine barring involuntary confessions: When the gap between the trial and guilty plea sentences might induce an innocent person to plead guilty, the plea is unreliable and a violation of due process. The appropriate remedy is for the defense to enter the plea subject to a trial offer, i.e., a request to the court to set the case for trial on lesser charges than those in the prosecution's trial threat; or subject to special procedures to reduce the risk of erroneous conviction at trial, such as barring proof of the defendant's prior convictions. The Supreme Court's plea bargaining cases are not inconsistent with such a procedure, while current practice is inconsistent with the Supreme Court's coerced confessions jurisprudence.

Keywords: plea bargaining, due process, guilty pleas

JEL Classification: K14, K40

Suggested Citation

Dripps, Donald A., Guilt, Innocence, and Due Process of Plea Bargaining (October 15, 2015). William & Mary Law Review, Forthcoming; San Diego Legal Studies Paper No. 16-202. Available at SSRN: https://ssrn.com/abstract=2674852

Donald A. Dripps (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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