Reforming Plea Bargaining To Facilitate Ethical Discourse

• Published date: 01 December 1991
• Date: 01 December 1991
• DOI: 10.1177/088740349100500404
• Author: Bradley S. Chilton
• Subject Matter: Articles

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Reforming Plea Bargaining To Facilitate Ethical
Discourse*
Bradley S. Chilton
Washington State University
Abstract
Plea bargaining processes have been subjected in recent decades to a
heightened level of scrutiny and attacked as constituting an unethical practice.
Yet plea bargaining continues to be the primary means of resolving criminal
cases. Can plea bargaining be institutionally reformed to facilitate ethically
acceptable practices?
The paper examines the reforms proposed and implemented to control
plea bargaining discretion to determine which ones might better facilitate
ethical discourse in the resolution of these criminal disputes. The paper details
the status quo of plea bargaining and structural reforms that abolish, replace,
or regulate current practices. It concludes with the normative argument that
"open-ended regulation" of plea bargaining better facilitates ethical discourse.
The findings generally imply the need for greater attention to contemporary
developments in applied ethical theory and to the structuring of ethical dis-
course in criminal justice.
Introduction
Plea bargaining processes have been subjected in recent decades to a
heightened level of criticism and public scrutiny. Grassroots citizen groups,
such as Mothers Against Drunk Driving (MADD) and Students Against Drunk
Driving (SADD), pressure state and local courts by appointing &dquo;watchdogs&dquo;
to oversee the plea bargaining of drinking & driving cases. The media and
general public have also critically focused attention on the plea bargaining
of these and other cases (Cohen & Doob, 1989). Scholars criticize the entire
practice of plea bargaining as immoral (e.g., Jordan, in Talarico, 1985). Yet
plea bargaining continues to be the primary means of resolving criminal
* A previous version of this paper was presented at the 1992 Annual Meeting of the
Academy of Criminal Justice Sciences, Pittsburgh Hilton & Towers, Pittsburgh, PA,
March 10-14, 1992.

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cases. Can plea bargaining be institutionally reformed to facilitate ethically
acceptable practices?
Critiques of plea bargaining focus on the Prosecutor, the individual who
holds the decision-making power. Historically, the public prosecutor’s role
at common law was merely to assist in prosecutions initiated and conducted
by the victim or complaining witnesses. The American transformation of
the Prosecutor into an elected official, beginning in Connecticut in 1704,
strengthened the prosecutor’s discretionary authority, in addition to granting
a monopoly over the initiation and conduct of prosecutions. The popular
election of most state and local prosecutors serves, in theory, to check the
plea bargaining policies and practices with which the public disagrees (Stein-
berg, 1984). In reality, however, plea bargaining practices are not widely
known and prosecutors’ elections do not focus on these issues. The political
response has shifted to one of reforming the plea bargaining process itself
(e.g., Gifford, 1983).
The paper examines the reforms proposed and implemented to control
plea bargaining discretion to better facilitate ethical discourse in the resolution
of these criminal disputes. The paper details the status quo of plea bargaining
and structural reforms that abolish, replace, or regulate current practices. It
concludes with the normative argument that an &dquo;open-ended regulation&dquo; of
plea bargaining better facilitates ethical discourse. The findings generally
imply the need for greater attention to contemporary developments in applied
ethical theory and the structuring of ethical discourse in criminal justice.
To avoid unnecessary semantic ambiguity, a note on a trilogy of concepts
and a general caveat. First, this paper distinguishes between three related
concepts: morality, ethics, and legality. For our purposes, moral reasoning
consists of formulating justifications for specific choices made by the in-
dividual in his or her relationship with others. Ethics refers to a more general
nature of such moral reasoning. Legality refers to the mere adherence to the
law, which itself may be of various ethical or moral content (cf. Kittrie and
Susman, 1979).
Plea Bargaining And Its Reforms
Status quo plea bargaining includes various adjudication structures
designed to protect the integrity of proceedings by &dquo;screening&dquo; or &dquo;reviewing&dquo;
plea bargaining. Judicial screening of plea bargaining imposes a variety of
evidentiary and other tests to remedy abuse before the case goes to negotiation.
These tests include: (1) mandated arraignment screening of the government’s
case to insure &dquo;provable&dquo; offenses and limit prosecutorial overcharging; (2)
requiring probable cause evidence of the guilt of the defendant in preliminary
or grand jury hearings; and (3) active judicial screening and general invol-
vement in the hiring of public defenders, etc., to insure competent and less-
acquiescent defense counsel. Generally, judicial screening structures are not
concerned with the plea bargaining discourse itself, only with the &dquo;ingredients&dquo;
that may go into such negotiations. The goal of judicial screening, to make

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the negotiation process a truly consensual one, has been compared with the
goal of antitrust laws to preserve a competitive marketplace (Gifford, 1983:
f.222).
Judicial review of plea bargaining is found in all jurisdictions and includes
review of the plea bargain by the sentencing judge, victims, state-paid or
volunteer court &dquo;watchdogs,&dquo; and appellate courts. This reform posits that
plea bargains are decisions for which prosecutors are held accountable on
review by the sovereign powers of the state, either in the form of some
elected hierarchy, public participation, or both. While prosecutors’ decisions
are not traditionally held reviewable by judges (U.S. v Nixon, 418 U.S. 683,
at 693 (1974)), courts are required to assure that pleas of guilty are voluntarily
and intelligently made (Brady v U.S., 397 U.S. 742, at 758 (1970)). However,
appellate courts do not review the substance or pressures of the negotiation
process (Weatherford v Bursey, 429 U.S. 545, at 561 (1977)). In-court review
of plea bargaining by the victims of a particular crime has been provided
for in a number of jurisdictions, allowing them a formal role in plea bargaining
and sentencing decisions (Gifford, 1983: 90-92). State-paid or volunteer court
&dquo;watchdogs&dquo; have arisen in many jurisdictions, typically sponsored by MADD
or SADD, to review and report to state legislators the conformity of
prosecutors, judges, and defense attorneys with the law. Reviews of
prosecutors’ plea bargaining by the court or &dquo;watchdogs&dquo; are explicitly
designed to help restore public involvement in and respect for the criminal
justice system.
However, these status quo structures are not perceived to facilitate or
deliver ethical resolution of criminal disputes. Some critics dispute the efficacy
of judicial screening or review, arguing for more rigorous arraignments (Noll,
1978),...