Hostname: page-component-7479d7b7d-m9pkr Total loading time: 0 Render date: 2024-07-11T12:22:14.907Z Has data issue: false hasContentIssue false
  • English
  • Français

In Defense of “Bargain Justice”

Published online by Cambridge University Press:  01 July 2024

Thomas W. Church Jr.
Get access Rights & Permissions [Opens in a new window]

Abstract

The strongest critics of plea bargaining argue that the practice should be abolished because it coerces defendants to give up their right to trial and because it results in irrational sentences for criminal defendants. Neither charge is applicable to a system of plea negotiations that meets four basic criteria: (1) the defendant always has the alternative of a jury trial at which both verdict and sentence are determined solely on the merits; (2) the defendant is represented throughout negotiations by competent counsel; (3) both defense and prosecution have equal access to relevant evidence; and (4) both possess sufficient resources to take a case to trial. The most fruitful direction of reform is to seek to achieve these conditions rather than attempt to eliminate plea bargaining.

Type
Philosophical Implications
Information
Law & Society Review , Volume 13 , Issue 2 , Winter 1979 , pp. 509 - 525
Copyright
Copyright © 1979 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

This essay has benefited from a lively exchange with Albert Alschuler. I regret to report that he remains unconvinced. I also wish to thank Richard Abel for both substantive and stylistic suggestions.

References

ALSCHULER, Albert W. (1968) “The Prosecutor's Role in Plea Bargaining,” 36 University of Chicago Law Review 50.Google Scholar
ALSCHULER, Albert W. (1975) “The Supreme Court, the Defense Attorney, and the Guilty Plea,” 47 University of Colorado Law Review 1.Google Scholar
ALSCHULER, Albert W. (1976) “The Trial Judge's Role in Plea Bargaining, Part I,” 76 Columbia Law Review 1059.Google Scholar
ALSCHULER, Albert W. (1978) “Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for ‘Fixed’ and ‘Presumptive’ Sentencing,” 126 University of Pennsylvania Law Review 550.Google Scholar
AMERICAN BAR ASSOCIATION. PROJECT ON MINIMUM STANDARDS FOR CRIMINAL JUSTICE (1967) Standards Relating to Pleas of Guilty. New York: Institute for Judicial Administration.Google Scholar
AMERICAN LAW INSTITUTE (1972) A Model Code of Pre-Arraignment Procedure, Tentative Draft No. 5. Philadelphia: American Law Institute.Google Scholar
BLUMBERG, Abraham S. (1967) “The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession,” 1 Law & Society Review 15.Google Scholar
CARTER, Lief H. (1974) The Limits of Order. Lexington, Mass.: Lexington Books.Google Scholar
CASPER, Jonathan D. (1972) American Criminal Justice: The Defendant's Perspective. Englewood Cliffs, N.J.: Prentice-Hall.Google Scholar
CHURCH, Thomas W. Jr. (1976) “Plea Bargains, Concessions, and the Courts: Analysis of a Quasi-Experiment,” 10 Law & Society Review 377.Google Scholar
DAVIS, Kenneth Culp (1971) Discretionary Justice: A Preliminary Examination. Urbana, Ill.: University of Illinois Press.Google Scholar
ENKER, Arnold (1967) “Perspectives on Plea Bargaining,” in President's Commission on Law Enforcement and the Administration of Justice.Google Scholar
HARVARD LAW REVIEW (1970) “The Unconstitutionality of Plea Bargaining,” 83 Harvard Law Review 1387.Google Scholar
HEUMANN, Milton (1975) “A Note on Plea Bargaining and Case Pressure,” 9 Law & Society Review 515.Google Scholar
HEUMANN, Milton (1978) Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys. Chicago: University of Chicago Press.Google Scholar
IOWA LAW REVIEW (1975) “The Elimination of Plea Bargaining in Black Hawk County: A Case Study,” 61 Iowa Law Review 1053.Google Scholar
KIPNIS, Kenneth (1976) “Criminal Justice and the Negotiated Plea,” 86 Ethics 93.Google Scholar
LACHMAN, Judith and McLAUGHLIN, William (1977) “Models of Plea Bargaining,” in Nagel, Stuart (ed.) Modeling the Criminal Justice System. Beverly Hills, Calif.: Sage Publications.Google Scholar
MATHER, Lynn (1974) “Some Determinants of the Method of Case Disposition: Decision-Making by Public Defenders in Los Angeles,” 8 Law & Society Review 187.Google Scholar
MATHER, Lynn (1979) Plea Bargaining or Trial? The Process of Criminal Case Disposition. Lexington, Mass.: Lexington Books.Google Scholar
NIMMER, Raymond (1976) “A Slightly Moveable Object: A Case Study in Judicial Reform in the Criminal Justice System,” 48 Denver Law Journal 206.Google Scholar
PACKER, Herbert (1968) The Limits of the Criminal Sanction. Stanford, Calif.: Stanford University Press.CrossRefGoogle Scholar
PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE ADMINISTRATION OF JUSTICE (1967) Task Force Report: The Courts. Washington, D.C.: Government Printing Office.Google Scholar
ROSETT, Arthur I. and Donald R., CRESSEY (1976) Justice by Consent: Plea Bargains in the American Courthouse. Philadelphia: Lippincott.Google Scholar
SKOLNICK, Jerome (1967) “Social Control in the Adversary System,” 11 Journal of Conflict Resolution 52.Google Scholar
TWENTIETH CENTURY FUND TASK FORCE ON CRIMINAL SENTENCING (1976) Fair and Certain Punishment. New York: Twentieth Century Fund.Google Scholar
U.S. NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND GOALS (1973) Courts. Washington, D.C.: Government Printing Office.Google Scholar
UTZ, Pamela (1978) Settling the Facts: Discretion and Negotiation in Criminal Court. Lexington, Mass.: Lexington Books.Google Scholar
VERA INSTITUTE OF JUSTICE (1977) Felony Arrests: Their Prosecution and Disposition in New York City's Courts. New York: Vera Institute of Justice.Google Scholar
WILSON, James Q. (1975) Thinking about Crime. New York: Vintage Books.Google Scholar