Capacity as Philosophy: A Review of Richard Lippke’s, The Ethics of Plea Bargaining

Plea bargaining is a response to capacity overload in the criminal justice system. It both preserves and belies the right to trial, making possible its glorious display but only by denying it in most cases. While plea bargaining has been documented and analysed copiously in historical, sociological and legal terms, its ethical status as an institutional practice are hazy. Richard Lippke offers an account of plea bargaining that draws on the normative debates over responsibility, culpability and desert, in aid of a holistic proposal for a morally defensible system of pre-trial adjudication. In proposing an ethical system of plea bargaining, and working through the normative challenges to this, two bigger questions become visible. These are: what are the implications of developing, in essence, an ethics of efficiency, and, how should the criminal justice system be held to account for the inequalities (and iniquities) that exist before and outside it? In this review essay, I show how these questions are constructed in the book and make some attempt at analysing them, thus engaging with the more urgent and general issue of the complicated relationship of the ideal to the real when it comes to penal practice.     

NEGOTIATION AND PLEA BARGAINING MODELS: An Organizational Perspective

This article assesses the contributions to our understanding of plea bargaining made by economic and decision-theory models of criminal justice decision-making. The author introduces an organizational interpretation of plea bargaining and critiques two of the more prominent attempts at formal modeling of the criminal process. Empirical evidence, gathered by others, is reanalyzed to compare the relative explanatory power of these formal models in determining patterns of choice among negotiative and adversary dispositions in two urban felony jurisdictions. The article concludes with the assertion that economic and decision-theory models present an insightful but essentially distorted view of criminal justice decision-making. An appreciation for contextual factors, emphasized in organization theory, is necessary for grasping the reality of the criminal process and for shaping meaningful reform.     

Texas Criminal Defense Attorneys’ Perceptions of Crime Victim Involvement in Criminal Prosecutions

The purpose of this study was to test the utility of the Victim Satisfaction Model of the criminal justice system by quantitatively assessing criminal defense attorneys’ perceptions of victims’ involvement in the charging and plea bargaining stages of the criminal process. A cross-section research design was used in this study. Self-administered questionnaires were mailed to defense attorneys who regularly practice criminal law in Texas. The results of this study support the utility of the Victim Satisfaction Model of the criminal justice system and further our understanding of victim involvement in the decision making and have important implications for the American criminal justice system.     

Plea bargaining: Its pervasiveness on the judicial system

The proposed standards of the American Bar Association and the National Advisory Commission on Criminal Justice Standards and Goals are expressed in an ideal perspective, compared with the reality of plea bargaining use by prosecutors. Fifty-five prosecutors were randomly selected from four countries in two states, and a standardized questionnaire was administered to the subjects. The majority of the sample indicated an essential need for plea bargaining to administratively ensure justice in the criminal courts. The American Bar Association maintains that administrative efficaciousness is a minute consideration in justifying plea bargaining as a legal institution. Standards proposed by the federal Task Force on Courts contend that plea bargaining is an unnecessary adjunct to the formal legal process. Either of the proposed standards would, if adopted, definitely activate participant roles in a formally operated legal environment.     

Incentives, criminal defence lawyers and plea bargaining

Plea bargaining has become a central feature of criminal procedure in Anglo-Saxon jurisdictions. This paper explores an area seldom discussed in the economic literature on plea bargaining: the influence of the defence lawyer's fee contract on the terms of the bargain. In particular, it uses data from one jurisdiction of the impact on case trajectories of changes in publicly funded defence lawyers’ contracts to test the proposition that the nature of the lawyer's contract influences how cases are managed. An event study methodology on a pooled time-series cross-section data set of case trajectories before and after the change in the nature of the contract is used to examine whether the new payment regime significantly changed the trajectories of cases through the summary criminal justice system. Overall the results seem to suggest that the behaviour of defence lawyers may be influenced by financial incentives. This implies that the terms of plea bargains reached between prosecution and defence lawyers may be affected by the defence lawyer's remuneration contract. Consequently, the authors conclude that the role of defence lawyers has been under-researched in the literature on the economics of plea bargaining.     

A historical sketch of plea bargaining

Plea bargaining is one of the most emotional and controversial topics in the field of criminal justice. Not only is it defined and documented poorly, its origins also are much disputed. Pro-plea bargainers like to trace plea bargaining to Cain and Abel's classic struggle. Anti-plea bargainers cite the post-American Civil War era as the beginning point for plea negotiation. The truth lies somewhere in between. This paper investigates primary and secondary sources from the fifteenth through the eighteenth centuries in an effort to pin down the specific initiation of plea bargaining and its antecedents. This work demonstrates that prejudice has distorted the study of plea bargaining's origin and encourages further research in this area.     

浅析刑事和解理念对辩诉交易制度的启示——以被害人为视角

辩诉交易制度与刑事和解制度是欧美刑事案件中适用的两类重要的司法制度。两种制度有其相似的地方,也有诸多的不同。其中一点便是刑事诉讼的被害人在两种制度中的地位和作用有着较大的差别。而两者的共同基础———社会契约理论和私法中契约自由的观念,以及辩诉交易制度在实际运作过程中可能出现的问题使得辩诉交易借鉴刑事和解的理念,加强被害人的地位和作用成为可能和必要。     

DECISION-MAKING IN THE CRIMINAL COURTS:

This article attempts an analysis of the relationship between the guilty-plea bargaining process and presentence investigation reports. It is argued that because plea-bargaining has increasingly come to involve bargaining over sentence. probation officers, as a consequence, have increasingly come to experience encroachment upon their decision-making autonomy. In this predicament they have found little support from judges, who, committed to norms of managerial efficiency will reassert the primacy of the plea-bargain when probation officers refuse to ratify previously negotiated sentence agreements. The policy implications of this for the criminal justice system are discussed.     

如何看待被告人有罪答辩——辩诉交易的一点启示

美国辩诉交易制度中的合理因素 ,可以为我国刑事司法实践中正确等待被告人有答辩提供借鉴。应当更新诉讼理念 ,将认罪答辩视为被告人作为诉讼主体对刑事程序运作方式的一种选择 ,建立激励被告人自愿作出有罪答辩的机制 ,对此类案件可简化诉讼程序 ,同时应建立对被告人有罪答辩自愿性明智性的审查机制。     

The use of simulation in criminal justice policy evaluation

The criminal justice system is administered at the local level by many independent agencies and departments, often without regard to each other's objectives and often at the expense of overall effectiveness. This study has attempted to relate the primary system goal of crime control to a set of policy alternatives distributed over each criminal justice sector. Specifically, a simulation model based on the techniques of “industrial dynamics” was developed to evaluate combinations of the following policies: speedy trial, no plea bargaining, and restricted bail. Data obtained from the District of Columbia's criminal justice agencies were used to validate the model. The results of the analysis indicate that the system is basically insensitive to small perturbations, but is susceptible to disruption from large changes in input and procedure. Under the given set of assumptions, continuation of current practices will lead to a gradual deterioration in performance that can only be stemmed by large expenditures on manpower and facilities.     

认罪认罚从宽制度实施风险及程序控制——基于美国辩诉交易制度实施风险的展开

我国认罪认罚从宽制度吸纳了我国试点的成熟经验和借鉴了美国辩诉交易等认罪协商制度的有益做法。而作为程序上先行先试的制度,在实施中既需要通过程序来避免无辜者被迫认罪和权权交易、权钱交易等,更要防控美国辩诉交易等协商性刑事司法折损正当程序衍生出的量刑失衡以及冤案的风险。认罪认罚从宽制度的程序完善需要针对制度实施极易产生风险的节点予以程序上特别控制,也需要完善相应风险控制的程序机制和救济制度,避免因程序简化可能带来的实体不公,保障我国这一制度的预期目标得以实现。     

ADVERSARIAL AND NONADVERSARIAL JUSTICE: A COMPARISON OF GUILTY PLEAS AND TRIALS*

Despite the frequency of guilty pleas, researchers disagree about the ability of plea bargaining to provide justice. Critics argue that plea bargaining deprives defendants of due process rights and procedural safeguards Proponents argue that guilty pleas save resources for cases that require trial and allow officials flexibility to tailor justice to individual defendants. This article explores these issues by examining the effect of defendant and case characteristics on sentence severity for 3,269 male robbery and burglary defendants who either pled guilty or were tried in six U.S. jurisdictions, three of which had recently attempted to eliminate or greatly reduce plea bargaining and three with few restrictions on plea bargaining. The results confirm some criticisms of plea bargaining, but refute others. More criminally experienced defendants and defendants who pled guilty at the earliest opportunity did not receive sentencing leniency. Moreover, to a large extent, the same variables predict sentence severity for guilty pleas and trials. In contrast, the results show that defendants convicted at trial received more severe sanctions than defendants who pled guilty, controlling for case severity, evidence, and offender characteristics The results also suggest that the jurisdictions which attempted to control plea bargaining through more centralized control of assistance succeeded in tightening the fit between case characteristics and sentences for both cases adjudicated by guilty plea and trial.     

Sexual assault nurse examiners' perceptions of the revictimization of rape victims

While Sexual Assault Nurse Examiner programs have improved the treatment of rape victims by offering more compassionate and thorough treatment, SANEs believe victims continue to face revictimization by the medical, criminal justice and legal systems. The purpose of this research is to explore SANEs' perceptions of the revictimization of rape victims by the police, legal system and medical system. Data from interviews with 39 Sexual Assault Nurse Examiners from four East Coast states reveal that most SANEs believe that the medical, criminal justice, and legal systems wield the power to revictimize rape victims. SANEs were more likely to cite the criminal justice system as a source of revictimization, followed by the medical system and legal system. According to SANEs, police contribute to victims' distress through failure to ask questions in a sensitive manner, failure to proceed with investigations, and by asking victim-blaming questions. Revictimization by the legal system results when charges are never filed, cases are postponed or dropped, plea bargains are unsatisfactory, and victims' character and credibility are questioned. Revictimization by the medical system is marked by long waits for medical attention.     

解读美国辩诉交易制度

辩诉交易虽源于英国 ,但却在美国发扬光大 ,成为美国刑事司法最具特色的制度之一。只有比较全面准确地了解辩诉交易制度的来龙去脉、实施情况、存在的问题以及对辩诉交易的各种评价之后 ,才能根据我国的法制环境进一步研究是否引入 ,如何引入的问题。     

Administration and Justice

Although the existence of plea negotiation as an operative mode of disposition in most criminal court systems has been firmly established, its role in the administration of justice remains a topic of considerable debate. It has been claimed that plea negotiation subverts ideal principles of justice while attending to administrative needs for speedy case settlement. More recent research indicates that disposition by guilty plea is a complex process that incorporates system needs as well as principles of justice. Findings from an exploratory study of the felony disposition guilty plea is a complex process that incorporates system needs as well as principles of justice. Findings from an exploratory study of the felony disposition process in the Multnomah County court system in Portland, Oregon suggest that, under certain conditions, plea negotiation can effect a balance between competing but interdependent domains of action in the criminal disposition process.     

Toward a Comparative Economics of Plea Bargaining

We attempt to open a path to the comparative analysis of criminal procedure by superimposing the efficiency principle onto an adversarial system characterized by an aversion to false convictions and an inquisitorial system characterized by a desire to justly punish the guilty. We begin with a general model of plea bargaining, embed it in a larger framework that addresses the costs of adjudication, the value of punishing the guilty and the costs of false convictions, and then link the desirability of plea bargaining and compulsory prosecution to the weights given these costs and benefits in the objective function. We examine the judicial endorsement of plea bargaining in the United States and the debate over European analogs to plea bargaining in light of the model, and conclude that plea bargaining will increase social welfare in adversarial systems but not in inquisitorial ones.     

Is a Plea Really a Bargain? An Empirical Study of Six Cities in China

There is a belief in the criminal justice system that it is better to take a plea offer to avoid uncertain consequences than risk going to trial. Prior studies using the data in Anglo-American courts have suggested that many legal and extralegal factors influence the decision of a guilty plea versus trial. China developed its own plea-bargaining system in 2016. Using 6826 DUI cases adjudicated in six cities, this study examines what factors affect the decision of a guilty plea and whether the guilty plea brings true benefits in Chinese courts. The results show that more serious crimes and more dangerous defendants were less likely to be disposed of through guilty pleas (as opposed to going to trial). One possible explanation is that prosecutors may make more punitive offers in these cases, which in turn discourages defendants from accepting them. In addition, using a propensity score weighting technique to control for potential confounding variables, this study finds that defendants who pleaded guilty were more likely to receive favorable case outcomes regarding pretrial detention and probation decision, which supports the argument that a guilty plea could help a defendant to avoid the “trial penalty” in Chinese criminal justice system.

     

确立中国式辩诉交易程序之研讨

随着社会、经济的发展,犯罪率不断上升,刑事案件越来越多。由于各种条件的限制,导致了刑事积案与日俱增。为了及时处理积案和集中力量查处大案,美、德、意等国家的法律规定了辩诉交易程序。我们应从中国国情出发,本着“洋为中用”原则,对国外辩诉交易的发展、辩诉交易与简易程序的关系进行研究,确立中国式辩诉交易程序。     

德国辩诉交易的实践与启示

在德国,辩诉交易制度完全是实践中自发的产物。德国辩诉交易实践的形态、产生、争论及相关司法判决和改革草案的分析表明,辩诉交易已经成为德国解决刑事案件的方式之一,这种方式的出现回应了德国刑事诉讼的特点及其面临的困境,同时也缩小了两大诉讼模式的差距,呈现了世界范围内体系差异而解决方式一致的诉讼规律。德国辩诉交易实践表明,在我国建立基于被告人认罪而迅速结案继而获得刑罚减轻的结案方式成为可能。     

On the theoretical basis for plea bargaining system

Before discussing the introduction of the plea bargaining system to China’s criminal justice system, it is necessary to study its theoretical basis. Among which, the following aspects should be focused on: the philosophical viewpoint of pragmatism is its thinking basis; the concept of contract is its cultural basis; the structure form of adversary procedure is its systematic basis; and the system of right to silence and discovery of evidence are its symbiotic basis. __________ Translated from Tribune of Political Science and Law, 2002, (6) (in Chinese)