Plea Bargaining and Ethics

LLRX, the “go-to” website for researchers seeking to leverage the expanding expertise and knowledge of legal resources, has published in its May 2013 edition an article titled Negotiating Justice: The New Constitutional Spectrum of Plea Bargaining by Ken Strutin. The article focuses on the impact of the Supreme Court’s decisions in Missouri v. Frye, 132 S.Ct. 1399 (2012) and Laflerv. Cooper, 132 S.Ct. 1376 (2012), and the upcoming appeal in Burt v. Titlow. The cases have divided practitioners and scholars into two camps: (1) those who consider the rulings to be a new statement in the law of plea bargaining and right to effective assistance of counsel; and (2) those who believe they are only a restatement of established principles. The cases have generated interest in the regulation of plea bargaining, the ethics and effectiveness of defense counsel as negotiator, the oversight of prosecutors regarding charging decisions, sentence recommendations and pre-trial discovery, and the scope of federal habeas corpus review and remedies.

Users of the Brooklyn Law School Library who want to research the subject of plea bargaining have access to The Ethics of Plea Bargaining by Richard L. Lippke (Call # K5458 .L57 2011). The book offers a full-length philosophical analysis of the ethics of plea bargaining and develops a sustained argument for restrained forms of the practice and against the free-wheeling versions that predominate in the United States. It offers an ethical argument for restrained forms of plea bargaining and provides a comparison between the different plea bargaining regimes that exist within the US, where it is well-established, England and Wales, where the practice is coming under considerable critique, and the European Union, where debate continues on whether it coheres with inquisitorial legal regimes. Addressing concerns about rewards for admitting guilt, penalties for exercising the right to trial, and the deliberate over-charging by prosecutors and charge bargaining, the author argues that the negotiation of charges and sentences should remain the exception, not the rule.