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The Problem of Voluntariness and Coercion in the Negotiated Plea

Published online by Cambridge University Press:  01 January 1979

Conrad G. Brunk
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Abstract

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This paper focuses on the narrow question whether prosecutorial or judicial negotiation of a reduced charge or sentence for a criminal defendant in exchange for a guilty plea renders the plea “involuntary.” I begin by clarifying the conditions under which choices in general are considered voluntary or coerced. In Part II, I measure the practice of plea bargaining against this general theory of voluntary choice. I argue that a negotiated guilty plea is not intrinsically involuntary but that many of the conditions commonly a part of plea bargaining may render it so. The negotiated plea can be defended from the charge of coercion only if these conditions can be, and are, eliminated. I also show that overt “threats” of prosecutorial or judicial reprisal are not the only way of coercing a guilty plea. Under certain conditions, apparent “offers” of leniency can be coercive as well.

Type
Philosophical Implications
Information
Law & Society Review , Volume 13 , Issue 2 , Winter 1979 , pp. 527 - 553
Copyright
Copyright © 1979 Law and Society Association.

Footnotes

An early draft of this paper was read in the Colloquium Series of the University of Waterloo Department of Philosophy; the comments and criticism of those who participated have been helpful. Richard Abel has been instrumental in helping me clarify several crucial points in the paper. I am especially indebted to my former colleague at Oakland University, Thomas Church, Jr., whose research and philosophical reflections, shared with me in many hours of dialogue, have been invaluable in shaping and clarifying my own thinking on this issue.

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