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August 23, 2007

New article on "Plea Bargaining and Victims"

Professor Michael O'Hear latest thoughtful contribution to interesting sentencing debates, which entitled "Plea Bargaining and Victims: From Consultation to Guidelines," now is available here via SSRN. Here is the abstract:

In its efforts to establish a genuine, participatory role for victims in the criminal process, the victims' rights movement has properly focused its attention on plea bargaining as a crucial locus of decisionmaking in the criminal justice system.  Prompted by victims' advocates, many jurisdictions have adopted consultation requirements, mandating that prosecutors seek input from victims before consummating deals with defendants.  Such requirements have been criticized on grounds of both principle (victims are not parties to criminal litigation, which exists to serve public interests in crime control and just punishment, not private interests in vengeance or compensation) and practical efficacy (consultation is costly and promotes expectations of decision control among victims that cannot be fulfilled).  Against the former objections, and in light of social psychology research on procedural justice, this Article suggests reasons why victim participation in plea bargaining may actually advance, rather than undermine, public interests in crime control and just punishment.  The Article further proposes, as a complement to mandatory consultation, the adoption by prosecutors of publicly available charging and plea-bargaining guidelines.  Such guidelines may helpfully address the practical efficacy objections to mandatory consultation.  They may also make an important contribution in their own right to victims' perceptions of procedural justice.

August 23, 2007 at 12:56 PM | Permalink


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Interesting paper and it is easy to agree in general. There is another side to that coin and one could make the same argument that due process for defendants has the same value. For example, this paragraph from page 4 applies equally to a defendant's due process understanding:

First, a person’s perception of the fairness of an official decision (here, the prosecutor’s decision to make or accept a particular plea offer) does not depend solely on the outcome, but also on various attributes of the process used to reach the outcome. Those attributes include (1) whether the people involved had an opportunity to tell their side of the story (“voice”); (2) whether the authorities were seen as unbiased, honest, and principled (“neutrality”); (3) whether the authorities were seen as benevolent and caring (“trustworthiness”); and (4) whether the people involved were treated with dignity and respect. The perception of voice, neutrality, trustworthiness, and respect can promote the acceptance of decisions that are believed to be incorrect or substantively unfair.

So there is the very real risk that as more procedural rights are passed to victims and taken from defendants, the process will defeat the purpose. One glaring example is is the slight mention of defendants' due process concerns on p 12: "At the same time, the defendant is asked for the same sort of input: is the initial assessment of the appropriate plea either incorrect or otherwise unjust?"

What about the right to remain silent? This guidelines proposition is in effect a mini-trial heard before any trial with the prosecutor and judge and jury. That may already take place and it may be a good idea to acknowledge that, but unless due process as quoted above from p 4 is also afforded the defendant, for the same reasons, this will only be a half-bleep effort.

Granted, defendants have lost the right to some respect if guilty, but if respect for the law and an understanding of justice is the goal, the same reasoning must be applied to defendants. The attack on due process has the opposite consequence.

Posted by: George | Aug 23, 2007 2:59:51 PM

Typo corrections:

This guidelines proposition is in effect a mini-trial heard before any trial with the prosecutor as judge and jury.

In addition, O’Hear has some support for this interpretation at p 5:

Procedural justice also fosters cooperative attitudes
towards the authorities and promotes general law-abidingness. These benefits, moreover, may be more significant than might first appear. Despite common stereotype of blameless victims and random
victimization, many victims are themselves involved in criminal activity, or live in neighborhoods with high crime rates, or are otherwise at high risk for involvement in or exposure to additional offenses. As to such victims in particular, there may be important law enforcement benefits that result from perceptions that legal authorities are worthy of respect and cooperation. (And one need only think of the “antisnitching” movement found in many minority communities to appreciate the consequences of a breakdown in respect for the authorities.)

I suggest this is true even if the victim is not involved in crime him- herself. In short, due process is very healthy, not mere technicalities.

Posted by: George | Aug 23, 2007 3:09:31 PM

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