The Prosecutor's Dilemma: Bargains and Punishments

76 Pages Posted: 11 Nov 2003

Abstract

Unlike consequentialists, retributivists condemn bargain justice - plea bargains and immunity deals - as violating a number of conditions of just punishment. While the difficulties prosecutor-initiated bargaining poses for prisoners in a consequentialist system of criminal justice are well known under the rubric of the prisoner's dilemma, this Article introduces the difficulties prisoner-initiated bargaining poses for prosecutors in a retributivist system of criminal justice. Applying four central principles of retributivism to a prisoner-initiated proposal offering inculpatory testimony on the prisoner's confederates in exchange for immunity demonstrates that each principle paradoxically requires, and is violated by, both acceptance and nonacceptance of the offer. Retributivism's conflicting principles generate a moral dilemma - the Prosecutor's Dilemma - in which no matter what a prosecutor does in response to the offer, retributivism's principles will be violated. According to the means preferred by retributivists themselves to resolve conflicts among principles, the Prosecutor's Dilemma is to be resolved by not accepting the offer and punishing neither the prisoner nor her confederates. Though perhaps theoretically sound, the resolution is a practical disaster. It allows prisoners to self-immunize merely by tendering a dilemmatic immunity offer. While the resolution perhaps reduces retributivism to the point of absurdity by disabling retributivism from justifying punishment of either the prisoner or her confederates, without the resolution of the Prosecutor's Dilemma retributivism remains internally inconsistent. As a result, the Prosecutor's Dilemma supplies an indirect defense of bargain justice.

Suggested Citation

Christopher, Russell, The Prosecutor's Dilemma: Bargains and Punishments. Fordham Law Review, Vol. 72, October 2003. Available at SSRN: https://ssrn.com/abstract=467502 or http://dx.doi.org/10.2139/ssrn.467502

Russell Christopher (Contact Author)

University of Tulsa College of Law ( email )

3120 E. Fourth Place
Tulsa, OK 74104
United States
918-631-2440 (Phone)
918-631-2194 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
299
Abstract Views
3,106
rank
102,934
PlumX Metrics