The Impropriety of Plea Agreements: An “Anthropological” View

Abstract

David Lynch nicely captures what John Langbein has denounced as the “torture” of plea bargaining. Langbein's wickedly suggestive essay traced modem criminal trial practice back to medieval criminal systems in which the body of the defendant became the victim in a social sacrifice. The modern analog, for Langbein, is that the Warren Court due process revolution “guaranteed” defendants a wide variety of procedural rights that society simply cannot afford (or, Lynch would say, refuses to afford) them. The result is the outrageously generous offer the state makes to the defendants. Put somewhat differently, this sort of “incentive system” plays mind games with the much-touted principle of autonomy built into the due process/waiver model. If trials establish an automatic “risk-preferring” principle on defendants, plea bargaining tempts them with a risk-averse alternative they might well wish they had never been offered. It is both more choice and less freedom. Plea bargaining forces a “normatively thinking” defendant into the world described by Judge Easterbrook in a parallel wickedly suggestive essay, in which he portrays bargaining as the cost system for rendering into usable averages all the predictive doubts we may have about the defendant's chances of winning on both substantive and procedural grounds.