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The Question of Voluntariness in the Plea Bargaining Controversy: A Philosophical Clarification

Published online by Cambridge University Press:  01 July 2024

Abstract

The practice of plea bargaining has been a subject of controversy in much recent literature. At least one legal philosopher, Kenneth Kipnis, has argued that this practice ought to be abolished on the ground that negotiated pleas are entered involuntarily. Wertheimer and Brunk have challenged Kipnis' claim that negotiated pleas are involuntary. I argue that each party to this controversy has failed to distinguish between two important questions: (1) are negotiated pleas involuntary in a sense that renders them legally invalid; and (2) are negotiated pleas involuntary in a sense that warrants the abolition of that practice as a matter of social policy? I believe that their failure to distinguish between these questions is partly responsible for the fact that their analyses of voluntariness are inappropriate to either of them. In showing how the analyses of these thinkers go wrong, I provide at least a partial account of the meaning of “involuntary” appropriate to the questions they conflate. Finally, I argue that the uses of “involuntary” in these questions, though established by practice, are nonetheless misleading, and I suggest alternative formulations of these questions that clarify the issues they present.

Type
Research Article
Copyright
Copyright © 1982 The Law and Society Association.

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References

References

BRUNK, Conrad (1979) “The Problem of Voluntariness and Coercion in the Negotiated Plea,” 13 Law & Society Review 527.Google Scholar
DWORKIN, Ronald (1977) “Is Law a System of Rules?” in Dworkin, R.M. (ed.) The Philosophy of Law. London: Oxford University Press.Google Scholar
KIPNIS, Kenneth (1976) “Criminal Justice and the Negotiated Plea,” 86 Ethics 93.Google Scholar
KIPNIS, Kenneth (1979) “Plea Bargaining: A Critic's Rejoinder,” 13 Law & Society Review 555.Google Scholar
PHILIPS, Michael (1981) “Wertheimer on Freedom, Voluntariness and Plea Bargaining,” (submitted per publication).Google Scholar
WERTHEIMER, Alan (1979a) “The Prosecutor and The Gunman,” 89 Ethics 269.Google Scholar
WERTHEIMER, Alan (1979b) “Freedom, Morality, Plea Bargaining and the Supreme Court,” 8 Philosophy and Public Affairs 203.Google Scholar

Cases Cited

Brady v. United States, 397 U.S. 742, 1970.Google Scholar
Garrity v. New Jersey, 385 U.S. 497, 1967.Google Scholar
Miranda v. Arizona, 384 U.S. 436, 464-465, 1966.Google Scholar
North Carolina v. Alford, 400 U.S. 25, 1970.Google Scholar