FROM PLEA NEGOTIATION TO COERCIVE JUSTICE - NOTES ON THE RESPECIFICATION OF A CONCEPT

• NCJ Number: 59920
• Journal: Law and Society Review Volume: 13 Issue: 2 Dated: SPECIAL ISSUE (WINTER 1979) Pages: 385-392
• Author(s): W F MCDONALD
• Date Published: 1979
• Length: 8 pages
• Grant Number(s): 75-NI-990129
• Agencies: NIJ-Sponsored

Annotation

BECAUSE THE LITERATURE INCLUDES DIVERSE VIEWS ABOUT A DEFINITION OF PLEA BARGAINING, MANY DIFFERENCES IN FINDINGS ARE MORE SEMANTIC THAN SUBSTANTIVE. THIS DEFINITION EMPHASIZES THE USE OF COERCION BY THE STATE.

Abstract

THE PURPOSE OF THIS PAPER IS TO PROVIDE AN ADEQUATE UNDERSTANDING OF WHAT IS INDISCRIMINATELY REFERRED TO AS 'PLEA BARGAINING' OR 'PLEA NEGOTIATION.' ALTHOUGH NEWMAN'S (1966) DISTINCTION BETWEEN EXPLICIT AND IMPLICIT PLEA NEGOTIATIONS HELPS TO CLARIFY THE CONFUSION SOMEWHAT, AN EXAMINATION OF THESE TWO TYPES OF SITUATIONS REVEALS THAT THEY HAVE COMMON ELEMENTS. THEY CAN VARY ACCORDING TO WHETHER THE AGREEMENT IS TREATED AS A LEGAL CONTRACT, HOW MUCH HAGGLING IS PERMITTED, AND WHO CONDUCTS THE NEGOTIATIONS. HOWEVER, EVEN THIS BROAD DEFINITION FAILS TO CONSIDER THE FUNDAMENTAL DISTINGUISHING FEATURE OF PLEA BARGAINING: THE STATE'S IMPROPER USE OF ITS COERCIVE POWER TO OBTAIN THE GROUNDS FOR PUNISHING SOMEONE OR TO ACHIEVE SOME PUBLIC GOOD BY THREATENING TO IMPOSE PENALTIES. THEREFORE, POLICY ISSUES IN THIS AREA SHOULD BE PHRASED IN TERMS OF THE VARIETY OF OPTIONS AVAILABLE IN TRYING TO ACHIEVE THESE TWO GOALS OF CONVICTING CRIMINALS AND PROTECTING THE PUBLIC GOOD. FOOTNOTES AND REFERENCES ARE PROVIDED. (KCP)