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date: 16 October 2019

Abstract and Keywords

This chapter examines plea bargaining under the common law in England and the United States, with brief references to Canada, Australia, and New Zealand. The work reveals plea bargaining operates in combination with mandatory sentencing to contribute to the rise of mass incarceration. It first considers the current nature, frequency, and patterns of variation of Anglo-American plea bargaining, noting that both U.S. and English criminal justice systems employ distinct kinds of agreements that are similar to negotiated guilty pleas and that civil forfeiture agreements are sometimes components of negotiated resolutions. The chapter proceeds by examining some of the major criticisms against plea bargaining as well as constitutional controversies (particularly in the U.S. context) that bargaining raises. It analyzes the constitutionality of plea bargaining, its relation to human rights, and some of the presumptions of the high courts about the practice. By probing competing accounts of the causes of plea bargaining, this work enables us to see how this controversial practice arose. The chapter concludes by analyzing the consequences of plea bargaining for the nature of “justice” meted out, focusing on four outcomes—false convictions, wrongful acquittals/dismissals, equity in sentencing, and administrative efficiency—and arrives at findings that challenge some of the key presumptions of high courts.

Keywords: plea bargaining, criminal justice systems, negotiated guilty pleas, civil forfeiture agreements, constitutionality, human rights, false convictions, wrongful acquittals/dismissals, equity in sentencing, administrative efficiency

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