The Question of Voluntariness in the Plea Bargaining Controversy: A Philosophical Clarification

Abstract

The practice of plea bargaining has been a subject of controversy in much recent literature. At least one legal philosopher, Kenneth Kipnis, has argued that this practice ought to be abolished on the ground that negotiated pleas are entered involuntarily. Wertheimer and Brunk have challenged Kipnis' claim that negotiated pleas are involuntary. I argue that each party to this controversy has failed to distinguish between two important questions: (1) are negotiated pleas involuntary in a sense that renders them legally invalid; and (2) are negotiated pleas involuntary in a sense that warrants the abolition of that practice as a matter of social policy? I believe that their failure to distinguish between these questions is partly responsible for the fact that their analyses of voluntariness are inappropriate to either of them. In showing how the analyses of these thinkers go wrong, I provide at least a partial account of the meaning of “involuntary” appropriate to the questions they conflate. Finally, I argue that the uses of “involuntary” in these questions, though established by practice, are nonetheless misleading, and I suggest alternative formulations of these questions that clarify the issues they present.