Plea Bargainings: Ethics and Politics

Abstract

This article argues for a re-orientation of the debates concerning plea bargaining in the light of a process of re-legitimation currently under way in which professional codes of ethics are given new importance. In the new rhetoric, plea bargaining is claimed to be in line with rather than contrary to traditional adversarial principles. The focus of this paper is to argue for a re-affirmation of deep-seated principles which contextualize professional ethics in the wider domain of the politics of criminal justice.A fundamental re-legitimation of plea bargaining is under way, the effect of which is to obscure, behind a mask of professional ethics and classical moralism, a process based on a culture of extortionate relationships which extract crude cost/benefit actuarialism from everyone involved. Earlier justifications of plea bargaining, deemed inconsistent with classical notions of legal rationality, are being replaced with new justifications in which plea bargaining is depicted as coming to fulfil rather than defeat adversary principles. The means by which this is being accomplished are the commodification of cases and the juridification of defendants; and a vital element of this process is the notion of professional ethics. Professional ethics, in this context, do not resolve ethical conflicts; rather, codes of conduct become a way of managing the system's inherent contradictions and obscuring the practice of criminal justice which, in turn, more and more derives its moral justification by reference to the codes.In this article, I want to suggest both that judicial and professional discourse around plea bargaining should be deconstructed and that more attention should be given by commentators to the politics of criminal justice.

Factual Support of the Guilty Plea and Sentence Bargaining During the Criminal Procedure - The Macedonian Experience

“…14 The pretrial phase judge decides upon the submitted draft-settlement, as noted above. 15 The pretrial phase judge evaluates the legality of the draft -settlement at a special hearing. At this hearing, pretrial judge particularly examines whether the draft -settlement is voluntarily submitted and whether the defendant is aware of and understands the legal consequences of the court's acceptance of the draft -settlement.…”

Delayed Justice - Macedonian Experience With Guilty Plea And Sentence Bargaining

“…These dilemmas were even more emphasized, bearing on mind the fact that this criminal justice instrument is still considered, at least, as a controversial one, since even in the US legal system which is its founder, or at least in its modern perspective, there are many discussions and debates regarding its fairness and open questions remain regarding its proper implementation (Baldwin & McConville, 1977;McConville, 1998;Boari & Fiorentini, 2001;Fisher, 2003;Herzog, 2004). For these reasons the above mentioned dilemmas by the Macedonian legal practitioners were more than substantiated, and proper implementation of the sentence bargaining and guilty plea was reasonably questioned.…”

“…For these reasons the prosecutors should not bargain with the detention during the sentence bargaining and process, since this type of bargaining is considered as bogus and it is not serving the justice, it just ads additional pressure to the defendant to plead guilty for the crime for which he might never confess in normal circumstances and is considered as an attack to the defendant's free will. For these reasons this Draft-settlements submitted to the court as result to commenced sentence bargaining procedure should not be accepted by the court and should be considered as involuntary confessions by the defendants (McConville, 1998).…”

Intersections Between In-Court Procedures and the Production of Guilty Pleas

“…Commonwealth courts include the High Court, the Federal Court, the Family Court and the Federal Magistrates Court. 2 There is considerable academic and judicial discussion on the efficacy of sentence discounts and their effects on the production of guilty pleas and on sentencing practice (Cameron v The Queen, 2002;Henham, 1999Henham, , 2002Mack & Roach Anleu, 1997;McConville, 1998;R v Thomson;R v Houlton, 2000). should grant an adjournment to allow defendants to present their cases as fully as necessary and within the limits of the law' (5160).…”