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Legal and Non-Legal Voluntariness: A Rejoinder to Wertheimer
Published online by Cambridge University Press: 01 July 2024
Extract
I argued in the paper that has given rise to this exchange (1982) that Wertheimer failed to distinguish between two questions: (A) Are negotiated pleas involuntary in a sense that renders them legally invalid? and (B) Are negotiated pleas entered involuntarily in a sense that justifies the abolition of plea bargaining as a matter of social policy? In his reply, Wertheimer agrees that he failed to make this distinction but disputes its importance. He offers two reasons for minimizing its significance: (1) That to decide (A) judges must decide “questions of social and political morality”; and (2) that the structure of the concept of voluntariness is the same in both (A) and (B). I will argue that (1) is false and that (2) is not true in any interesting sense.
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- Copyright © 1983 The Law and Society Association.