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Is Plea Bargaining Just?

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At Law and Liberty, psychiatrist and former prison doctor Theodore Dalrymple posts an essay severely critical of plea bargaining.  His focus is on capital cases, but the analysis is applicable across the board.

I disagree with most of what he says, and I think he simply refuses to come to grips with the realities of the criminal justice system, particularly the limitations on its funding and the scope of the social problem it is designed to attack.  But the article struck a chord with me, as it makes a case I have long thought appealing:  That plea bargaining is deeply unsatisfying if not, at some level, unjust.

As the author says, "[P]lea-bargaining is intrinsically unjust because it may induce the innocent to plead guilty and the guilty to hold out for a lesser punishment than they deserve."  I have lots of doubts about the first part of that sentence, although there may be rare cases in which it is true.  The second part, however, is true in spades, although hardly ever mentioned in today's debates.  Simply because the money is not there to take anything but a small percentage of cases to trial  -- and because trials have become so time consuming, complex and expensive  -- criminals routinely get lesser punishment than their behavior has earned or the law (at least theoretically) provides.

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My answer is no largely for the reasons stated in Scalia's Laffler dissent.

If one is guilty he or she should face the full charges. Otherwise the system loses some of its integrity.

I think there are narrow types of crimes where it might be wise for an innocent defendant to plead guilty to a lesser charge. For example in a "shaken baby" ir arson case, presumably the defendant knows he is innocent but is staring down potentially damning expert testimony to the contrary and it could be prudent to plea to a leaser cgarge thab potentially face first degree murder conviction on the battle of the experts.

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