Plea Bargaining: A Critic's Rejoinder
![handle is hein.journals/lwsocrw13 and id is 557 raw text is: PLEA BARGAINING: A CRITIC'S
REJOINDER
KENNETH KIPNIS
The paper is a reply to two defenders of a reformed system of plea
bargaining: Thomas Church and Conrad Brunk. At the broadest level,
it is argued that plea bargaining is in a twofold conflict with the consti-
tutive purposes of the liberal-democratic idea of a criminal justice sys-
tem: the practice is not conducive to the punishment of the guilty in
accordance with their deserts and it violates basic liberties, among
them the right against self-incrimination and the right to the lowest
reasonable sentence. It is argued that the value of the jury trial is in-
sufficiently appreciated in Church's analysis. Brunk is criticized for
failing to distinguish between two critical responses to plea bargaining:
that the agreement made by the defendant should not be honored by
the courts and that public officials act wrongfully in coercing such
pleas.
Thomas Church (supra) and Conrad Brunk (supra) have
written rebuttals of what they take to be some of the leading
arguments against the institution of plea bargaining. Church's
paper is more ambitious, an attempt to establish as ground-
less the case for the inherent impropriety of plea bargaining,
(supra: 512). Brunk, though building upon Church's work, has
a somewhat narrower focus. He is concerned to undercut the
critic's argument that, because of inevitable coercion, bar-
gained-for guilty pleas do not represent the voluntary choices
of defendants.
The papers have some notable similarities. Both authors
seem convinced that plea bargaining, as presently practiced, is
improper. Each, however, lists conditions that, if satisfied,
would eliminate significant objections to plea bargaining. Al-
though both are concerned about practicality, each gives prior-
ity to the question whether plea bargaining, taken as a whole
and in its ideal form, is justifiable. Church writes:
[A] defense grounded upon economics or administrative convenience
is somewhat beside the point against the kind of fundamental charges
leveled against plea bargaining by its strongest critics. [Supra: 511]
I believe that this is both correct and important. For surely
none would object if justice could be achieved with the expen-
diture of less money, time, and energy.1 But if savings in the
I It is generally assumed that the system of plea bargaining is cheaper
than a no-bargain system. This may not be so. Under a no-bargain system it
appears that fewer defendants would be brought to trial. If, for example, there
is only a 25 percent chance for the prosecutor to get a conviction and send a
suspect to prison for 10 years, under plea bargaining the prosecutor might offer
to accept a plea of guilty to a charge carrying a one-year prison sentence.
Under a no-plea system, the prosecutor might well choose to drop the case en-
tirely. If enough of these weak cases are dropped--or, more likely, never
brought to the attention of the prosecutor-fewer people may spend time in](ViewImageLocal?handle=hein.journals/lwsocrw13&div=35&collection=&method=preview&ext=.png&size=3)
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Plea Bargaining: A Critic's Rejoinder
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