Abstract
Criminal defendants in many countries are faced with a dilemma: If they waive their right to trial and plead guilty, they typically receive charge or sentence reductions in exchange for having done so. If they exercise their right to trial and are found guilty, they often receive stiffer sanctions than if they had pled guilty. I characterize the former as ‘waiver rewards’ and the latter as ‘non-waiver penalties.’ After clarifying the two and considering the relation between them, I briefly explicate the grounds for a moral right to trial. I then assess the defensibility of such rewards and penalties. In addition to considering whether waiver rewards and non-waiver penalties serve the aims of legal punishment, I address the three main arguments for permitting them. The first suggests that defendants willing to plead display more remorse for their crimes and thus are deserving of lighter sentences. The second defends waiver rewards and non-waiver penalties in cases where prosecutors are alleged to know that defendants are guilty but face problems establishing their guilt at trial. The third holds that guilty defendants who are willing to plead conserve scarce state resources and should be rewarded for it, whereas those unwilling to plead squander such resources and should be penalized accordingly. I contend that none of these arguments provides persuasive grounds for waiver rewards or non-waiver penalties, even on the assumption that we can distinguish those defendants who should waive their right to trial from those who should not. This conclusion presents a fundamental challenge to contemporary plea bargaining practices.
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Notes
Bordenkircher v. Hayes, 434 U.S. 357 (1978).
See especially Justice Lewis Powell’s dissenting opinion in the case.
Schulhofer (1992: 1993) estimates that sentences in plea bargain cases are from 25 to 75% lighter than those received by defendants convicted at trial on the same charges.
Justice Lewis Powell’s dissenting opinion in the Hayes case suggests another possible explanation for pre-trial and post-trial sentence differentials. Suppose that a defendant is charged with manslaughter and the prosecutor offers him a sentence reduction in exchange for a plea. The defendant refuses the plea. Shortly afterwards, the prosecutor charges him with second degree murder and refuses to tender the defendant a plea offer. This certainly appears to be prosecutorial retaliation, as it surely was in the Hayes case. But it is conceivable that the prosecutor’s actions might not stem from a desire to punish the defendant for having exercised his right to a trial. Suppose that during or shortly after the initial plea negotiations, the prosecutor received evidence showing that the defendant was likely guilty of the more serious offense. It will look to all of the world that the stiffer sentence the defendant receives if convicted on the more serious charge is a non-waiver penalty. But the appearances are, I would suggest, misleading. The prosecutor is not acting vindictively in changing the charges, and is, in fact, behaving as he or she should. Admittedly, in practice it will be exceedingly difficult to distinguish such cases of appropriate prosecutorial behavior from those illustrated by the Hayes case, a point that Justice Powell understood. But in theory we can still distinguish them.
For a survey of some alternative adjudicative methods, see Alschuler (1983: 969–1048).
As Alschuler (1981: 692–693) notes, criminal trials encourage genuine advocacy by defense lawyers in ways that plea bargaining does not. Such advocacy may expose flaws and irregularities in the state’s case that will be glossed over in the rush to reach a plea agreement.
This is a view about legal punishment that some retributivists will find more appealing than others. For elucidation of such an educative role for legal punishment, see Duff (1986: 236–245). For doubts about the state’s role in inducing a penitent understanding of criminal wrongdoing, see von Hirsch and Ashworth (2005: 75–91).
Alschuler pointedly notes that the evidence does not support this claim. Indeed, there is some evidence that those who plead guilty are more likely to commit future offenses (Alschuler 1981: 662).
The concept of ‘dehabilitation’ comes from Mathiesen (2000: 53).
There are, of course, other accounts of punishment’s justifying aims. However, my sense is that they lack political standing, in the sense of providing the kinds of considerations apt to move legislators and judges. Hence, they are unlikely to provide prominent justifications for non-waiver penalties and waiver rewards.
Again, it is not quite correct to say that there is little to be said for putting the state’s case to the test. If, for instance, the police have used investigative techniques that violate the law, then exposing them in the course of a trial may serve the very useful social purpose of discouraging such techniques in the future.
It should be noted that all criminal offenders impose costs on the law-abiding public, ones that are typically unnecessary. These costs include those of investigating, apprehending, charging, and processing defendants, whether the processing involves trials or plea bargaining or something else. If it were not for criminal offenders, the law-abiding public would not have to bear the burdens of supporting police forces, prosecutors, courts, and prisons. Nor would it have to purchase insurance against theft or arson, or buy home or automobile security devices. In short, criminal behavior is costly and therefore burdensome in lots of ways. Why, then, focus on the cost of trials and insist that guilty offenders be made to pay for them? Perhaps we should send all offenders, even those who plead guilty, a bill for their share of the costs imposed on the law-abiding public. If we are not willing to do so, then it is not clear why, in all fairness, we should fixate on the ‘needless costs’ of trials for defendants who know themselves to be guilty. For further discussion of these matters, see Lippke (1999).
If waiver rewards and non-waiver penalties are as indefensible as my arguments make them out to be, it would appear to follow that prosecutors are doing something illicit by proffering them. It thus would seem appropriate to revisit the question whether plea bargaining—especially when it involves the explicit or implicit threat of non-waiver penalties—is fundamentally a coercive practice. My hunch is that it will be easier to make out the claim that it is when such threats are made to criminal defendants who are innocent or believe themselves to be so. But the issues here are complex enough to warrant separate discussion.
Such skepticism about eliminating plea bargaining is expressed by Heumann (1981: 157–162).
References
Alschuler, A. W. (1968). The prosecutor’s role in plea bargaining. University of Chicago Law Review, 36, 50–112.
Alschuler, A. W. (1981). The changing plea bargaining debate. California Law Review, 69, 652–730.
Alschuler, A. W. (1983). Implementing the criminal defendant’s right to trial: Alternatives to the plea bargaining system. University of Chicago Law Review, 50, 931–1050.
Alschuler, A. W., & Deiss, A. B. (1994). A brief history of the criminal jury in the United States. University of Chicago Law Review, 61, 867–928.
Bronaugh, R. (1998). Is there a duty to confess? Newsletter on philosophy and law, Vol. 98 (pp. 86–90). Dover, Del.: American Philosophical Association.
Duff, R. A. (1986). Trials and punishments. Cambridge: Cambridge University Press.
Findley, K. A., & Scott, M. S. (2006). The multiple dimensions of tunnel vision in criminal cases. Wisconsin Law Review, 2006, 291–397.
Fisher, S. Z. (1987–1988). In search of the virtuous prosecutor: A conceptual framework. American Journal of Criminal Law, 15, 197–261.
Frank, M. J., & Borschard, D. (2006). The silent criminal defendant and the presumption of innocence: In the hands of real jurors, is either of them safe? Lewis & Clark Law Review, 10, 237–285.
Gross, H. (1979). A theory of criminal justice. New York: Oxford University Press.
Hagan, J., & Dinovitzer, R. (1999). Collateral consequences of imprisonment for children, communities, and prisoners, in prisons. Crime and Justice: A Review of Research, 26, 121–162.
Heumann, M. (1981). Plea bargaining: The experiences of prosecutors, judges, and defense attorneys. Chicago: University of Chicago Press.
Lippke, R. L. (1999). Making offenders pay—for the costs of their punishment. Social Theory and Practice, 25, 61–77.
Lippke, R. L. (2007). Rethinking imprisonment. Oxford: Oxford University Press.
Mather, L. M. (1979). Plea bargaining or trial? The process of criminal case disposition. Lexington, Mass.: Lexington Books.
Mathiesen, T. (2000). Prison on trial (2nd ed.). Winchester, UK: Waterside Press.
McCoy, C. (1993). Politics of plea bargaining: Victims’ rights in California. Philadelphia: University of Pennsylvania Press.
McCoy, C. (2005). Plea bargaining as coercion: The trial penalty and plea bargaining reform. Criminal Law Quarterly, 50, 67–107.
Murphy, J. (1979). Moral death: A Kantian essay on psychopathy, in his retribution, justice, and therapy. Dordrecht, Netherlands: D. Reidel.
Nagin, D. S. (1998). Criminal deterrence research at the outset of the twenty-first century. Crime and Justice: A Review of Research, 23, 1–37.
Nemerson, S. S. (1980). Coercive sentencing. Minnesota Law Review 64, 669–750.
Note. (1970). The unconstitutionality of plea bargaining. Harvard Law Review, 83, 1387–1411.
Schulhofer, S. (1992). Plea bargaining as disaster. Yale Law Journal, 101, 1979–2009.
Tonry, M. (1992). Proportionality, parsimony, and interchangeability of punishments. In R. A. Duff, S. Marshall, & R. E. Dobash (Eds.), Penal theory and penal practice (pp. 59–83). Manchester: Manchester University Press.
von Hirsch, A., & Ashworth, A. (2005). Proportionate sentencing: Exploring the principles. Oxford: Oxford University Press.
von Hirsch, A., Bottoms, A. E., Burney, E., & Wikstrom, P. O. (1999). Criminal deterrence and sentence severity: An analysis of recent research. Oxford: Hart Publishing.
Waldron J. (1981). A right to do wrong. Ethics, 92, 21–39.
Wasik, M., & von Hirsch, A. (1994). Section 29 revisited: Previous convictions in sentencing. Criminal Law Review, 1994, 409–418.
Western, B. (2006). Punishment and inequality in America. New York: Russell Sage Foundation.
Acknowledgments
Much of the work on this article was completed while I was a Visiting Research Fellow at the Centre for Applied Philosophy and Public Ethics at Australian National University in Canberra, Australia. I thank the Centre for its support of my work. An earlier version of this article was presented to my colleagues at James Madison University. I thank them for their helpful comments and suggestions.
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Lippke, R.L. To Waive or Not to Waive: The Right to Trial and Plea Bargaining. Criminal Law, Philosophy 2, 181–199 (2008). https://doi.org/10.1007/s11572-007-9043-0
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DOI: https://doi.org/10.1007/s11572-007-9043-0