Plea Bargainings: Ethics and Politics
| Author | Mike McConville |
| Published date | 01 December 1998 |
| Date | 01 December 1998 |
| DOI | http://doi.org/10.1111/1467-6478.00103 |
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 contextual-
ize 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 justi-
fications 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 prin-
ciples. The means by which this is being accomplished are the commod-
ification 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.
© Blackwell Publishers Ltd 1998, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Professor of Law, School of Law, University of Warwick, Coventry CV4
7AL, England
I wish to thank Kathy Mack, Sharon Anleu, and Bob Mostello for comments given on an
earlier version of this paper at Queen’s University, Belfast in April 1998 and my colleagues
Lee Bridges, Satnam Choongh, Roger Leng, and Paul Havemann. Paul Roberts provided me
with a set of insightful comments from which I greatly benefited although I could not incor-
porate all of them.
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JOURNAL OF LAW AND SOCIETY
VOLUME 25, NUMBER 4, DECEMBER 1998
ISSN: 0263–323X, pp. 562–87
Plea Bargaining: Ethics and Politics
MIKE McCONVILLE*
563
© Blackwell Publishers Ltd 1998
In doing this, I concentrate on the role of defence lawyers since this raises
what I consider to be the dominant issues.1
PLEA BARGAINING: THE CLASSICAL DEFENCE
Under classical understanding, plea settlements conflicted neither with
adversary principles nor with traditional sentencing theory. Whilst retaining
the trial as the badge of adversariness, the system could justify giving a
sentence reduction to defendants who were truly remorseful and who thereby
gave up their right to trial by pleading guilty because, in doing so, they had
taken the first step towards rehabilitation and had thus already gone some
way towards meeting the objectives which any sentence would otherwise
have to secure alone.
Historically, therefore, courts tended to emphasize the importance of
repentance, of which the guilty plea might be one sign, in contrast to ancillary
benefits which might flow from a guilty plea.2It followed from the principle
of remorse that there would be no basis for reducing a sentence if the guilty
plea was purely tactical rather than a product of repentance, and little basis
for significant mitigation where the defendant, by reason of the weight of
the evidence and the circumstances of the case, had no realistic alternative
except to plead guilty.3
It was entirely consistent with classical theory, therefore, that the need to
base mitigation in remorse rather than in the fact of a guilty plea was re-
iterated by the Court of Appeal when it dealt for the first time with the
general issue of plea bargaining.4In the first of the principles laid down in
Turner (F.R.)5the Court of Appeal insisted upon the need for remorse:
Counsel must be free to do what is his duty, namely, to give the accused the best advice
he can and, if need be, in strong terms. It will often include advice that a guilty plea,
showing an element of remorse, is a mitigating factor which might enable the court to
give a lesser sentence. (emphasis supplied)
Put in this way, plea bargains and sentence discounts appeared to cause little
conflict with adversary ideals and raised few significant ethical problems for
1For consideration of the prosecutor’s role in plea bargaining see, for example,: A. Alschuler,
‘The Prosecutor’s Role in Plea Bargaining’ (1968) 36 University of Chicago Law Rev. 50; B.
Grosman, The Prosecutor (1969); D. Nissman and E. Hagen, The Prosecution Function (1982);
A. Worden ‘The Judge’s role in plea bargaining: an analysis of Judges’ agreement with
Prosecutors’ sentencing recommendations’ (1995) 12 Justice Q. (1995) 257; M. Blake and A.
Ashworth ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ (1998) Crim.
Law Rev. 16.
2Harper [1968] 2 Q.B. 108.
3Of course, in the latter situation there is no reason why a defendant should not be truly
remorseful and get recognition for that in the sentence. Being remorseful is not incompatible
with being caught red-handed. The difficulty facing the sentencer in such a case is to identify
genuine repentance in a situation of hopelessness.
4 The Court had earlier begun to address this question in Hall 52 Cr. App. R. 528 C.A.
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