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Plea Bargaining with Wrong Reasons: Coercive Plea-Offers and Responding to the Wrong Kind of Reason

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Abstract

The notion of a defendant submitting a false guilty plea due to the penal incentive offered is not an uncommon phenomenon. While the practice has been legitimised based on the defendant’s voluntary informed consent, it has often been argued that the structure of the plea-bargaining practice is coercive. Such can be the case whenever the plea offer entails a significant sentence differential, discrepancy in the form of punishment (a non-custodial sentence relative to a custodial one), or when the alternative of pleading guilty includes the risk of capital punishment. Having said that, plea-bargains have often been classified as a “non-coercive offer”, whether due to their advantageous mutual character according to a baseline conception of coercion or being an offer that one can overcome according to an irresistible psychological account. While many scholars have struggled with the ambiguous notion of “coercive offers,” the paper offers an alternative approach, arguing that it is the type of reasons to be considered within the offer that renders the bargain less than fully autonomous. It will be argued that the plea-bargain proposition infuses irrelevant (guilt-uncorrelated) penal considerations unrelated to the question of guilt. Such considerations are the wrong kind of reason for the guilty-plea decision, and due to the defendant’s dependency on the plea offer, they distort the defendant’s intentional character of her autonomous decision. It is part of the conception of the guilty plea. Though a defendant may autonomously intend to consider irrelevant penal considerations, such a decision cannot be genuinely considered a decision regarding the admission of guilt.

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Notes

  1. C.A. Brook et al., “A Comparative Look at Plea Bargaining in Australia, Canada, England, New Zealand, and the United States”, Wm. & Mary L. Rev. 57 (2016): pp. 1147–1224.

  2. Fair Trials, Disappearing Trial: Towards a Rights-Based Approach to Trial Waiver Systems (2017) < https://www.fairtrials.org/sites/default/files/publication_pdf/Report-The-Disappearing-Trial.pdf > accessed 06 December 2020; J. Turner, “Plea Bargaining”, in L. Carter & F. Pocar (eds), International Criminal Procedure (Edward Elgar Publishing, 2013).

  3. Stephen J. Schulhofer, “Plea Bargaining as Disaster”, Yale Law Journal 101 (1992): pp. 1979-2010.

  4. O. Gazal-Ayal & L. Riza, “Plea-bargaining and Prosecution”, in N. Garoupa (ed.), Criminal Law and Economics, vol. 3 (2nd edn, Edward Elgar Publishing, 2009), p. 153; M. Langer, “Rethinking Plea Bargaining: The Practice and Reform of Prosecutorial Adjudication in American Criminal Procedure”, Am. J. Crim. L. 33 (2005): pp. 223-300, 229-247.

  5. For leading case law in the English system, see R v Turner [1970] 2 WLR 1093, 1097; R v Goodyear [2005] EWCA Crim 888, [2005] 3 All ER 117, at [65]. On the importance of voluntariness in the US, see Machibroda v U.S., 368 U.S. 487 (1962); Boykin v Alabama, 395 U.S. 238 (1969); North Carolina v Alford, 400 U.S. 25 (1970); Brady v. U.S., 397 U.S. 742 (1970).

  6. D.J. Newman, Conviction: The Determination of Guilt or Innocence without Trial (Little, Brown, 1966), p. 8.

  7. A. Duff et al., The Trial on Trial. Volume 3, Towards A Normative Theory of The Criminal Trial (Bloomsbury Publishing, 2007), pp. 169–170.

  8. F.H. Easterbrook, “Plea Bargaining Is a Shadow Market”, Duquesne Law Review 51 (2013): pp. 551–558; R.E. Scott & W.J. Stuntz, “Plea Bargaining as Contract”, Yale Law Journal 101 (1992): pp. 1909–1968, 1914–1915.

  9. In the notorious case of Alford (North Carolina v Alford, 400 U.S. 25, at 40 (1970)), the US Supreme Court affirmed Alford’s guilty plea in spite of his explicit assertion of innocence. Recently in England, a similar practice of an “Alford Plea” has been legitimised, see R v Dann [2015] EWCA Crim 390.

    In a 1975–1976 UK study, Baldwin and McConville had found that 57.8 per cent of defendants pleaded guilty despite claims of innocence, see J. Baldwin & M. McConville, Negotiated Justice: Pressures to Plead Guilty (Martin Robertson, 1977), pp. 9–63. In Israel, Kobo’s 2006–2007 study found that 15 per cent of defendants interviewed had pleaded guilty despite denying the allegations, see A. Kobo, Inconsistent Pleaders in Court: Pleading Guilty and Claiming to Be Innocent (Nevo Publishing, 2009) (Hebrew), p. 289.

  10. For significant works on the coerciveness of plea bargains, see K. Kipnis, “Criminal Justice and the Negotiated Plea”, Ethics 86(2) (1976): pp. 93–106; C.G. Brunk, “The Problem of Voluntariness and Coercion in the Negotiated Plea”, Law & Society Review 13 (1979): pp. 527–553, 535.

  11. For a similar analysis see Turner, “Plea Bargaining”, supra note 2 82–83; B. Newman, “Managerial Induced Guilty Pleas in England and Israel—Legitimacy and the Role of the Judiciary: Reclaiming Judicial Responsibility through Managerial Means”, Criminal Law Forum 32 (2021): pp. 355–403, 378–379; R.K. Helm, “Conviction by Consent? Vulnerability, Autonomy and Conviction by Guilty Plea”, The Journal of Criminal Law 83(2) (2019): pp. 161–172, 167; R.K. Helm, R. Dehaghani and D. Newman, “Guilty Plea Decisions: Moving beyond the Autonomy Myth”, The Modern Law Review 85(1) (2022): pp. 133–163, 142–145.

  12. R.R. Faden, T.L. Beauchamp & N.M.P. King, A History and Theory of Informed Consent (Oxford University Press, 1986), pp. 340–341. See discussion in section II(2) below.

  13. Ibid, 341–343. For further discussion see section II(3) below.

  14. Ibid, 344–346. For further discussion see section III(1) below.

  15. See O. Gazal-Ayal & A. Tor, “The Innocence Effect”, Duke L.J. 62(2) (2012): pp. 339–402, 367 (on risk aversion).

  16. A 1992 UK Home Office study found 51 per cent of defendants interviewed had pleaded guilty due to the prospect of a lighter sentence, 22 per cent due to low acquittal probability, and another 12 per cent out of the desire for quick disposal, See C. Holderman & D. Moxon, Magistrates’ Court or Crown Court? Mode of Trial Decisions and Sentencing (Home office Research Study 125, 1992), pp. 23–24.

  17. Helm, Dehaghani and Newman, supra note 11, 152.

  18. A.W. Alschuler, “The Prosecutor’s Role in Plea Bargaining”, U. Chi. L. Rev. 36 (1968): pp. 50, 61.

  19. The English sentencing guidelines stipulate that a non-custodial sentence can be considered over a custodial one, see Sentencing Council, Reduction in Sentence for a Guilty Plea: Definitive Guideline 2017 (June 2017) at https://www.sentencingcouncil.org.uk/publications/item/reduction-in-sentence-for-a-guilty-plea-definitive-guideline (last accessed 02 April 2019), para. E. 1.

  20. Gazal-Ayal & Riza, supra note 4, 154.

  21. Erma Faye Stewart and Regina Kelly, Frontline (June 17, 2004), http://www.pbs.org/wgbh/pages/frontline/shows/plea/four/stewart.html.

  22. North Carolina v Alford, 400 U.S. 25, at 40 (1970).

  23. Kipnis, supra note 10, 99.

  24. See Faden, Beauchamp & King, supra note 12, 340–341.

  25. Ibid, 341–343.

  26. Michael Gorr, “Toward a Theory of Coercion”, Canadian Journal of Philosophy 16(3) (1986): pp. 383–405.

  27. A. Wertheimer, Coercion (Princeton University Press, 1989), p. 202; H.G. Frankfurt, “Coercion and Moral Responsibility”, in The Importance of What We Care About (Cambridge University Press, 1988), pp. 26–46, 27.

  28. R. Nozick, “Coercion”, in Sidney Morgenbesser et al. (eds), Philosophy, Science, And Method: Essays in Honor of Ernest Nagel (Macmillan, 1969), pp. 440–472, 447.

  29. See Frankfurt’s criticism of the baseline conception, arguing that the butcher’s less attractive offer may be considered coercive according to a baseline conception as it renders the offeree worse off; see Frankfurt, supra note 27, 30–32.

  30. Zimmerman endorses a non-moral baseline account relating to the offeror’s responsibility for creating the pre-propositional baseline situation. That said, Zimmerman notes that “where this threshold lies is a good question”; see D. Zimmerman, “Coercive Wage Offers”, Philosophy & Public Affairs 10 (1981): pp. 121–145, 124.

  31. Wertheimer, Coercion, supra note 27, 207. See also M.N. Berman, “Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions”, Geo. L.J. 90 (2001): pp. 1–112, 14.

  32. Wertheimer, Coercion, supra note 27, 212.

  33. Bordenkircher v Hayes, 434 U.S. 358 (1978).

  34. Id, at 363.

  35. Berman, “Coercion without Baselines”, supra note 31, 99; Josh Bowers, “Plea Bargaining’s Baselines”, Wm. & Mary L. Rev. 57 (2016): pp. 1083–1146, 1089.

  36. North Carolina v Alford, 400 U.S. 25 (1970).

  37. Wertheimer, Coercion, supra note 27, 13.

  38. See Bowers, supra note 35, 1118–1137.

  39. See M.H. Kramer, The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences (Oxford University Press, 2011).

  40. Berman articulates a conception of coercion without reference to a baseline, arguing that an offer is coercive whenever the threat is unconstitutional, with the coercer’s reasons and purposes relevant for the determination of its constitutionality, see Berman, “Coercion without Baselines”, supra note 31, 45–47.

  41. Wertheimer, Coercion, supra note 27, 273–274.

  42. Berman considers the wrongfulness of coercion in the unconstitutionality of the threat; see Berman, “Coercion without Baselines”, supra note 31, 18.

  43. M.N. Berman, “The Normative Functions of Coercion Claims”, Legal Theory 8(1) (2002): pp. 45–89. See also M.N. Berman, “Coercion, Compulsion, and the Medicaid Expansion: A Study in the Doctrine of Unconstitutional Conditions”, Tex. L. Rev. 91 (2012): pp. 1283, 1292 (distinguishing between the wrongness of coercion and compulsion that constrains the offeree’s choice).

  44. Frankfurt, supra note 27, 31.

  45. Ibid, 33.

  46. Ibid, 41.

  47. Ibid, 36–37.

  48. Ibid, 40–41.

  49. See discussion in Brunk, supra note 10, 552.

  50. See Faden, Beauchamp & King, supra note 12, 341–342, addressing the subjectivity of the irresistibility criterion.

  51. On the effects of life imprisonment, see T.J. Flanagan, Long-Term Imprisonment: Policy, Science, and Correctional Practice (1995), pp. 41–50.

  52. Erma Faye Stewart, see supra note 21.

  53. Frankfurt, supra note 27, 37.

  54. Alschuler, supra note 18, at 62 (describing a few cases where defendants were sentenced to death after rejecting a guilty-plea offer).

  55. In Bordenkircher v Hayes, the defendant rejected the guilty-plea offer despite the explicit threat of an additional indictment resulting in a life imprisonment sentence, see Bordenkircher v Hayes, 434 U.S. 358 (1978).

  56. In their qualitative study, interviewing 12 accused, Euvrard & Leclerc showed that, in certain situations, pre-trial detention works as an inducement rather than as coercion, leading defendants to agree to a guilty plea which they had, at any rate, intended to plead, only in a swifter fashion and on the prosecution’s terms. See E. Euvrard & C. Leclerc, “Pre-Trial Detention and Guilty Pleas: Inducement or Coercion?”, Punishment & Society 19(5) (2007): pp. 525, 529, 535.

  57. Brunk, supra note 10, 533–534.

  58. J. McGregor, “Undue Influence as Coercive Offers in Clinical Trials”, in D.A. Reidy & W.J. Riker (eds), Coercion and the State (Springer, 2008), pp. 45–59, 50.

  59. Ibid, 49.

  60. Ibid, 52–53; See also J. McGregor, “Bargaining Advantages and Coercion in the Market”, Philosophy Research Archives 14 (1988): pp. 23–50, 45–46.

  61. Ibid, 31–37.

  62. See A. Wood, “Coercion, Manipulation, Exploitation” in C. Coons and M. Weber (eds), Manipulation: Theory and Practice (Oxford University Press, 2014), p. 33.

  63. Wertheimer articulates an account of exploitation in mutually advantageous agreements; see A. Wertheimer, Exploitation (Princeton University Press, 1999), pp. 27, 34.

  64. Wertheimer considers an unfair advantage when one party gains more than the fair reservation price, Ibid, 10, 207–209, 211.

  65. McGregor, “Bargaining Advantages and Coercion in the Market”, supra note 60, 34–35.

  66. Faden, Beauchamp & King refute Beechers’ coercion claim on the coerciveness of inducing prisoners to participate as research subjects, claiming that the vulnerable situation doesn’t render the generous offer coercive. See Faden, Beauchamp & King, supra note 12, 341.

  67. Raz further argues that autonomy requires the availability of morally acceptable options, see J. Raz, Morality of Freedom (Clarendon Press, 1986), p. 377–378.

  68. On the distinction between manipulation and deception, see R. Noggle, “Manipulative Actions: A Conceptual and Moral Analysis”, American Philosophical Quarterly 33(1) (1996): p. 43.

  69. Barnhill considers the victim’s unawareness as a key feature of manipulation; see A. Barnhill, “What Is Manipulation?” in C. Coons & M. Weber (eds), Manipulation: Theory and Practice (Oxford University Press, 2014), pp. 58–59.

  70. D. Parfit, “Rationality and Reasons”, in D. Egonsson et al. (eds), Exploring Practical Philosophy: Essays in Honour of Ingmar Persson (2001), p. 17; See also M. Schroeder, “The Ubiquity of State-Given Reasons”, Ethics 122(3) (2012): pp. 457-488, 462; W. Rabinowicz & T. Rønnow-Rasmussen, “The Strike of the Demon: on Fitting Pro-Attitudes and Value”, Ethics 114(3) (2004): pp. 391-423, 405; P. Stratton-Lake, “How to Deal with Evil Demons: Comment on Rabinowicz and Rønnow-Rasmussen”, Ethics 115(4) (2005): pp. 788-798, 791.

  71. Ibid, 791.

  72. D. Parfit, On What Matters, vol. 1 (Oxford University Press, 2011), p. 51.

  73. T.M. Scanlon, What We Owe to Each Other (Belknap Press, 1998), p. 97. Some consider the BPV theory part of the FA (fitting attitude) analysis, See Rabinowicz & Rønnow-Rasmussen, supra note 70, 400.

  74. Scanlon, supra note 73, 97. The BPV (buck-passing value) theory is so named because it’s the value of the object’s property which is passed on to the attitude towards the object of reason.

  75. Ibid, 67.

  76. Stratton-Lake, supra note 70, 788, 794; Schroeder, “Ubiquity of State-Given Reasons”, supra note 70, 462. See also C. Piller, “Content-Related and Attitude-Related Reasons for Preferences”, Royal Institute of Philosophy Supplements 59 (2006): pp. 155-181; J. Olson, “Buck-Passing and the Wrong Kind of Reasons”, Philosophical Quarterly 54 (2004): pp. 295-300.

    Note, Parfit situates the state–object distinction within a value-based theory of reasoning rather than a desire-based theory, according to which reasons are provided not by the fact that we have a desire for these reasons but by the fact that it gives us reason to have them, see Parfit, “Rationality and Reasons”, supra note 70, 19–23. In What Matters, Parfit distinguishes between subjectivist and objectivist reasoning. See Parfit, What Matters, supra note 72, 58.

  77. H.M. Emory, “The Guilty Plea as a Waiver of Rights and as an Admission of Guilt”, Temp. L.Q. 44 (1971): pp. 540–551.

  78. D.J. Newman, supra note 6, 8.

  79. Duff et al., supra note 7, 169–170.

  80. See Schroeder’s discussion on the ubiquity of state-given reasons, see “Ubiquity of State-Given Reasons”, supra note 70.

  81. Ibid, 485.

  82. Note, in contrast to Schroeder, who considers the unique character of withholding a decision as a lack of intention (Schroeder, “Ubiquity of State-Given Reasons”, supra note 70, 475–478), in the plea-bargaining example, it is a positive decision as to whether to take accountability for one’s actions or to demand that the prosecution prove the case.

  83. Faden, Beauchamp & King argue that it is the intentionality of the action, alongside “understanding” and “free from external control”, which classifies actions as autonomous, see Faden, Beauchamp & King, supra note 12, 241–248.

    In his conception of agency, Bratman holds both reflectiveness and intentional planfulness as part of agency; see M.E. Bratman, Structures of Agency (Oxford University Press, 2007), pp. 27–28. For more on the nexus between intentional acts and agency, see D. Davidson, “Essay 3. Agency (1971)”, in Essays on Actions and Events (Clarendon Press, 2001), pp. 43–62, 46–47.

  84. F. Kooch, “Consent as a Normative Power”, in A. Muller and P. Schaber (eds), The Routledge Handbook of the Ethics of Consent (Routledge, 2018), pp. 33–43, 37.

  85. L. Alexander, “The Moral Magic of Consent (II)”, Legal Theory 2 (1996): pp. 165–174, 165; H.M. Hurd, “The Moral Magic of Consent”, Legal Theory 2(2) (1996): pp. 121–146, 126.

  86. Scanlon, supra note 73, 21.

  87. Bratman argues that intentions have a role in determining which options to consider by providing reasons for actions and signifying the considerations relevant to the intentional act, See M. Bratman, Intentions, Plans and Practical Reasons (Harvard University Press, 1987), pp. 24, 33–34.

  88. Anscombe observed that whenever one acts intentionally one is answerable to a particular sort of “why” question, see G.E.M. Anscombe, Intention (2nd edn, Blackwell, 1963), p. 9. See also P. Hieronymi, “Controlling attitudes”, Pacific Philosophical Quarterly 87(1) (2006): pp. 45–74, 56–58.

  89. Similarly, a not-guilty plea may be submitted for the wrong type of reasons (such as the fear of a co-defendant’s retaliation). That said, such scenarios are less engaging as the not-guilty plea decision is not a conclusive decision, considering that the trial system does not count on the defendant’s not-guilty plea for progressing to the next trial stage but merely requires the prosecution to prove the case. Furthermore, the defendant is not bound to a not-guilty plea and has further opportunities to plead guilty throughout the trial process if she desires to do so.

  90. J. Raz, “When We are Ourself”, in Engaging Reason: On the Theory of Value and Action (Oxford University Press, 2010), pp. 5–21, 20.

  91. Raz, Morality of Freedom, supra note 67, 369–370.

  92. Bratman argues that planfulness includes both reflectiveness and intentions (Bratman, Structures of Agency, supra note 83, 25–28), further arguing that planning agency is an essential element in the concept of autonomy as in autonomous agency (ibid, ch. 10).

  93. G. Dworkin, “Acting Freely” Nous (1970): pp. 367–383, 376.

  94. Ibid, 381. Elsewhere, Dworkin considers the capacity to identify or reject preferences as part of autonomy; see G. Dworkin, The Theory and Practice of Autonomy (Cambridge University Press, 1988), pp. 15–20.

  95. On the value of autonomy as non-alienation, see D. Enoch, Hypothetical Consent and the Value(s) of Autonomy, Ethics 128(1) (2017): pp. 6-36, 27.

  96. Raz argues that a person who detests the desires which motivate him is alienated from his desires, Raz, Morality of Freedom, supra note 67, 382.

  97. Carr argues that interference with freedom relates to the imposition of a reason which should not have been considered in ordinary deliberations. However, he does not explicate how the imposition of reasons interferes with freedom; see C.L. Carr, “Coercion and Freedom”, American Philosophical Quarterly 25.1 (1988): pp. 59–67, 64–65.

  98. Raz, Morality of Freedom, supra note 67, 373–377.

  99. In the literature debate on the voluntariness of clinical trial payments, it has been claimed that excessive incentives may distort the rational decision-making process by over-weighting the short-term benefits and underestimating the disadvantages, see T.L. Beauchamp, “Autonomy and Consent” in F.G. Miller & A. Wertheimer (eds), The Ethics of Consent—Theory and Practice (Oxford University Press, 2010), pp. 55–78, 72; Emily Largent et al., “Misconceptions about Coercion and Undue Influence: Reflections on the Views of IRB Members”, Bioethics 27(9) (2013): pp. 500–507, 505; E.J. Emanuel, “Undue Inducement: Nonsense on Stilts?”, The American Journal of Bioethics 5(5) (2005): pp. 9–13, 9; A. Wertheimer & F.G. Miller, “Payment for Research Participation: A Coercive Offer?”, Journal of Medical Ethics 34(5) (2008): pp. 389–392, 391.

  100. Piller, supra note 76, 201; Schroeder, “Value and the Right Kind of Reason”, Oxford Studies in Metaethics 5 (2010): p. 13.

  101. Following Parfit’s analysis, one can argue that there aren’t any state reasons because if state reasons are desired as an object of desire, they are, in effect, object types of reasons, see Parfit, What Matters, supra note 72, 51. See also Schroeder, “Ubiquity of State-Given Reasons”, supra note 70, 461; J. Way, “Transmission and the Wrong Kind of Reason”, Ethics 122 (2012): pp. 489–515.

  102. Duff et al., supra note 7.

  103. Schroeder, “Value and the Right Kind of Reason”, supra note 100, 8, 24; Rabinowicz & Rønnow-Rasmussen, supra note 70, 410–411.

  104. See Olson’s discussion on the evil demon and the saucer of mud, arguing that the mere fact that a person may prefer the saucer of mud solely because of the demon’s threat doesn’t make the saucer of mud valuable, since the justifying explanation as to why we ought to entertain the attitude is A-referential, See Olson, supra note 76, 300.

  105. Beauchamp, supra note 99, 66; Nelson et al., “The Concept of Voluntary Consent”, The American Journal of Bioethics 11(8) (2011): pp. 6–16, 10.

  106. J. Feinberg, Harm to Self (Oxford University Press, 1986), p. 261.

  107. In the Alford plea, the court’s stare decisis reasoning considered the defendant’s consent to a guilty plea as a waiver of the right to trial by accepting the imposition of the agreed prison sentence and the admission of guilt. Thus, the court had linked the voluntariness requirement of the guilty plea to the consent of a prison sentence rather than the admission of guilt. See North Carolina v Alford, 400 U.S. 25 (1970) at 37.

  108. Duff et al., supra note 7, 177–178.

  109. Feinberg views the notion of Coercive offers as conceptually “murky”. Although, on the one hand, they have a coercive effect, on the other hand, they are freedom-enhancing by offering an option which was not previously available, see Feinberg, supra note 106, 246–247.

Acknowledgements

Benjamin Newman is a PhD candidate at the Zvi Meitar Center for Advanced Legal Studies, Buchmann Faculty of Law, Tel-Aviv University. The author thanks Assaf Sharon and David Enoch for their insightful comments.

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Newman, B. Plea Bargaining with Wrong Reasons: Coercive Plea-Offers and Responding to the Wrong Kind of Reason. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09680-w

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