The Changing Plea Bargaining Debate

This Article examines plea bargaining both as a sentencing device and as a form of dispute resolution. Defenses of plea bargaining a decade or so ago usually emphasized its sentencing function, arguing that guilty defendants who acknowledged their guilt merited lighter sentences than comparable defendants who insisted upon standing trial. Most current defenses start from a different vantage point and treat plea bargaining primarily as a form of dispute resolution. They suggest that it is desirable to afford both the defendant and the state the option of compromising factual and legal disputes and that the consent of the affected parties can justify "intermediate" dispositions by which both sides avoid the risks of litigation. This Article contends that neither justification is persuasive and that plea bargaining remains an inherently unfair and irrational process, one that turns major treatment consequences upon a single tactical decision irrelevant to any proper objective of criminal proceedings. Although most of my earlier writing on plea bargaining viewed this subject from an operational perspective, this Article adopts, here and there, a broader, more jurisprudential viewpoint.