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August 4, 2010

"Private Plea Bargains"

The title of this post is the title of this great forthcoming piece from my Ohio State colleague Ric Simmons, which is now available via SSRN.  Here is the abstract:

This article analyzes the phenomenon of private criminal settlements; that is, settlements in which the victim or witness agrees not to report the perpetrator to the police in exchange for some consideration on the part of the perpetrator.  The article first examines why these settlements occur and then determines whether or not they should be permitted, and if so, under what circumstances.

There are two different paradigms that can be used in analyzing private criminal settlements. The first paradigm, which has been used by scholars who have previously considered this issue, has been to treat these settlements as a form of blackmail.  Legislatures in every state have also used this paradigm to criminalize private criminal settlements.  But as the article points out, the justifications for criminalizing these agreements under a blackmail paradigm turn out to be particularly weak.

The article goes on to analyze private criminal settlements under a different paradigm, by treating them as the private analogue to public plea bargains.  Using this analysis, the true cost of these agreements becomes apparent.  Public plea bargains have long been criticized as providing a sort of second-class justice, but many scholars have also concluded that the process of plea bargaining brings certain benefits to the criminal justice system.  The article applies the critiques of plea bargaining to private criminal settlements, and concludes that private settlements share all the drawbacks and costs of public plea bargains, while providing almost none of the benefits.

The article ends by discussing the implications of this analysis for current laws regarding private criminal settlements.  It concludes that private criminal settlements should remain criminalized, but with one significant exception: settlements made between individuals who had a pre-existing relationship should be permitted.

August 4, 2010 at 06:20 PM | Permalink

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Comments

Ìnteresting. In Canada we have a clear statute regarding this issue and the exception. Here is the section 141 of the Canadian Criminal Code to give you a better idea.


Compounding indictable offence
141. (1) Every one who asks for or obtains or agrees to receive or obtain any valuable consideration for himself or any other person by agreeing to compound or conceal an indictable offence is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Exception for diversion agreements
(2) No offence is committed under subsection (1) where valuable consideration is received or obtained or is to be received or obtained under an agreement for compensation or restitution or personal services that is

(a) entered into with the consent of the Attorney General; or

(b) made as part of a program, approved by the Attorney General, to divert persons charged with indictable offences from criminal proceedings.

R.S., 1985, c. C-46, s. 141; R.S., 1985, c. 27 (1st Supp.), s. 19.


As you can see, a private deal is criminal unless the prosecutions office is part of the discussion pre-deal. Case law shows that you have to include the prosecution in the discussion. You cannot only bring the done-deal to rubber stamping to the AG's office.

Posted by: Frederick Carle | Aug 20, 2010 12:46:20 AM

And I'm really not sure about allowing pre-existing relationships for "private pleas".

In my 6 years and a half as a defence attorney, relatives or people known to the defender are often more unreasonnable in their discussion/negociation with the prosecution than the "unknown". Mostly because of the high emotivity level and things gotten too personal. Blackmail is more prone actually in those cases.

Just for example I've seen a case where the plaintiff asked the prosecution to get him the couch and salt-pepper dispenser in the deal for her divorce agreement so she drops the charge... guess what happened next.

Way better deals get done with people who dont know each other since their path won't probably ever cross again.

But even then, that's just my little experience. Maybe other defense attorney's would say different with their experience.

Posted by: Frederick Carle | Aug 20, 2010 1:00:53 AM

In my 6 years and a half as a defence attorney, relatives or people known to the defender are often more unreasonnable in their discussion/negociation with the prosecution than the "unknown". Mostly because of the high emotivity level and things gotten too personal. Blackmail is more prone actually in those cases.

Just for example I've seen a case where the plaintiff asked the prosecution to get him the couch and salt-pepper dispenser in the deal for her divorce agreement so she drops the charge... guess what happened next.

Way better deals get done with people who dont know

Posted by: ecco shoes | Sep 10, 2010 11:14:21 PM

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