Plea bargaining is a ubiquitous phenomenon in certain contemporary criminal justice systems. Most estimates of its frequency in the United States, for instance, suggest that upwards of ninety per cent of criminal cases are resolved through some form of it. (1) Plea bargaining consists of both sentence bargaining, where charged defendants agree to plead guilty in exchange for sentence reductions, and charge bargaining, where charged defendants plead guilty to a subset of charges (sometimes for reduced sentences) against them in exchange for prosecutors dropping other charges (or not adding additional ones).
There has been some philosophical discussion of the practice of plea bargaining, much of it focused on whether prosecutors' offers are in some way coercive. (2) Considerably more attention has been paid to it by legal scholars. (3) But none of the extant literature addresses very fully or carefully the ways and extent to which the practice comports with a retributive approach to the justification of legal punishment. (4) Intuitively, plea bargaining seems at odds with an approach to the justification of legal punishment that focuses on sanctioning offenders in accordance with the severity of their crimes. The relation between plea bargaining and just punishment seems too contingent to satisfy retributivists, especially since the existing literature on plea bargaining makes apparent that its outcomes depend on factors that often have little to do with the gravity of the offenses with which defendants are charged or to which they plead guilty, (5) Indeed, there seems little reason to believe that plea bargaining yields penalties for sanctions that consistently or systematically give offenders what they deserve. Moreover, plea bargaining may sometimes induce factually innocent defendants to plead guilty, while permitting individuals who are guilty of crimes to avoid punishment for them. Add to this the evidence that those who accept guilty pleas receive sentences that are lighter by some twenty-five to seventy-five per cent than those who, after trials, are convicted of the same offenses, and it is clear why retributivists might view the practice with considerable unease. (6)
Some will respond to the preceding points by noting that they say more about the dubious character of retributivism than the suspect credentials of plea bargaining. But one need not be a pure retributivist to be troubled by the apparently tenuous relationship that exists between plea bargaining and ensuring that citizens receive the sentences that those among them who have committed crimes deserve. Even those who regard desert as only a limiting principle in a comprehensive justification of legal punishment, one that also gives a prominent role to crime reduction, might worry about the extent to which plea bargaining seems at odds with that principle. I shall not, in what follows, attempt to determine the precise weight that a desert principle should be given in a fully developed account of legal punishment, though I will assume it should be accorded significant weight. I shall instead elaborate the tensions between it and the practice of plea bargaining, recognizing that how troublesome those tensions will turn out to be depends on how seriously we take the notion that punishment should be responsive to citizens' criminal deserts.
In the first section, I discuss the guiding principles and presuppositions of retributive justice. The latter concern the broader social conditions that must be satisfied if legal punishment is to function meaningfully as a mechanism for censuring citizens for their blameworthy conduct.
The former concern the more specific features a criminal justice system must incorporate if it is to perform the tasks retributivists expect of it. In the second section, l refer to these presuppositions and guiding principles in elaborating the tensions that exist between retributive justice and plea bargaining. …