64 Pages Posted: 23 Apr 2007 Last revised: 23 Jul 2014
Recognizing the increasingly dominant role of plea bargaining in the American criminal justice system, legal scholars have devoted considerable attention in recent years to problems of accuracy and proportionality in cases resolved by guilty plea. However, an overriding focus on the outcomes of plea bargaining misses the important contributions that process makes to the acceptance of outcomes and the perceived legitimacy of the criminal justice system. Drawing on the extensive social psychology research on procedural justice, this Article proposes five process norms that prosecutors ought to observe when making or responding to plea offers. Paying greater attention to procedural justice in this setting may not only bring some much-needed transparency to a critical aspect of the criminal justice system, but also enhance defendants' levels of voluntary compliance with legal rules and authorities, thus advancing the system's core crime-control objectives. Moreover, while it is not cost-free, procedural justice can be implemented in meaningful ways without undermining the basic goal of efficient case processing that is often invoked as the chief justification for plea bargaining.
Keywords: plea bargaining, procedural justice, social psychology
Suggested Citation: Suggested Citation
O'Hear, Michael M., Plea Bargaining and Procedural Justice. Georgia Law Review, Vol. 42, No. 2, 2008; Marquette Law School Legal Studies Paper No. 07-02. Available at SSRN: https://ssrn.com/abstract=982220 or http://dx.doi.org/10.2139/ssrn.982220
By Scott Howe