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

By Slobogin, Christopher | William and Mary Law Review, March 2016 | Go to article overview

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


Slobogin, Christopher, William and Mary Law Review


ABSTRACT

Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted substantive and procedural premises of American criminal justice: Plea bargaining routinely results in punishment disproportionate to desert, and guilty pleas are an insult to procedural due process. This Article argues that the only way to align plea bargaining with our criminal justice premises is to change those premises. It imagines a system in which retribution is no longer the lodestar of punishment, and in which 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 (that is, judicially-monitored) rather than run by the adversaries, it would have a greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.

TABLE OF CONTENTS

INTRODUCTION
I.   PLEA BARGAINING TODAY
     A. Plea Bargaining and Desert
     B. Plea Bargaining and Due Process
II.  PLEA BARGAINING REIMAGINED
     A. Plea Bargaining and Preventive Justice
     B. Plea Bargaining and Inquisitorialism
III. OBJECTIONS
     A. Constitutional Objections
     B. Accuracy Objections
     C. Implementation Objections
CONCLUSION

INTRODUCTION

Plea bargaining and guilty pleas are intrinsically incompatible with the most commonly-accepted premises of American criminal justice. The practice of negotiating an admission of guilt in exchange for a lowered charge or sentence cannot be reconciled with either a retributively-based criminal law or an open, confrontational procedure. It inevitably results in sentences or the threat of sentences that are disproportionate to desert, using a process that ignores the panoply of constitutional rights that are viewed as the linchpin of American justice. (1)

In light of this country's high crime rates and the expense of its trials, plea bargaining may be a necessary institution. (2) But if so, it would ideally function in a manner that is as congruent as possible with the criminal justice system's goals. Unfortunately, restructuring plea bargaining so that it better fits the retributive and adversarial tenets of American criminal justice is impossible. Defendants will not agree to a plea offer unless they can be assured the resulting sentence will be less harsh than what they would receive after conviction at trial, a dynamic that seriously undermines the retributive notion that there is a single "just" punishment for every offender; rather, there are at least two, often wildly disparate, possible punishments in plea-bargained cases. And prosecutors will not offer a plea that does not include, as a condition, that the defendant waive virtually all adjudicatory rights and agree to a verdict delivered at a pro forma hearing that is a far cry from the classic adversarial trial. (3) Plea bargaining as practiced today encourages the parties to adopt positions that are antithetical to the most important goals of the system.

This Article argues that the only way to align plea bargaining with the substantive and procedural premises of American criminal justice is to change those premises. It imagines a system in which retribution is no longer the lodestar of criminal punishment, and in which 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 (that is, 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. …

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