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The Ethics of Plea Bargaining$
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Richard L. Lippke

Print publication date: 2011

Print ISBN-13: 9780199641468

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199641468.001.0001

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Plea Bargains as Contracts

Plea Bargains as Contracts

(p.167) 7 Plea Bargains as Contracts
The Ethics of Plea Bargaining

Richard L. Lippke

Oxford University Press

Another traditional defense of plea bargaining claims that waiver rewards of any size or kind are legitimate if the contracting parties—usually prosecutors and defendants (or their attorneys)—freely agree to them. Yet contract theorists have not been careful to note the ways in which both parties can act wrongly in reaching plea agreements or trade in goods to which they are not morally entitled. Plea bargained agreements will often, as a result, be unworthy of our respect even if they are freely reached. In fact, the plea agreements which are respectable are ones for which we have independent grounds for believing that criminal offenders receive sentences appropriate to their crimes. The conclusion reached is that the element of free agreement, so prized in other contexts, has a minimal justificatory role in the realm of criminal justice.

Keywords:   contract, waiver rewards, coercion, trial penalties, overcharging, entitlements, legal punishment

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