The Problem of Voluntariness and Coercion in the Negotiated Plea

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.