This paper argues that the critics' best case fairly stated against plea bargaining fails in its own terms to show that plea bargaining is necessarily unjust or injustice-tending. Critically, this paper argues against plea-bargaining's critics without resorting to the typical pro-plea-bargaining arguments about efficiency or the value of choice. Plea-bargaining may be efficient as a means of deterring crime and saving prosecutorial resources, but, even if so, those facts simply would not answer the moral charge which plea-bargaining's critics lay. Or, plea-bargaining may realize the defendant's rational choice, but where it is sensible to ask whether those very choices should be forced upon the defendant, an appeal to choice in this way begs rather than answers the moral question raised by the critic. Avoiding these morally suspect arguments, this paper seeks to do better by way of defending plea-bargaining. If it is to be answered at all, the moral case against plea bargaining must be answered in the terms of the critics' real moral concern without resort to the usual poor arguments, and this paper provides that moral answer by focusing on several key critical arguments. Specifically, this paper refutes the claim that plea bargaining leads to the conviction of too many innocents; that it is necessarily coercive or tending towards coercion; and that it inequitably leads to the unlike treatment of like cases.
I think I still stand behind all of the substance of the piece, but I think it could bear compression stylistically. Substantively, in fact, I think it is probably the best non-collaborative piece of philosophy I've ever written. It is pretty good as legal scholarship, too, I think. Of course, I would.
