To plead? or not to plead? 'Guilty' is the question. Re-thinking plea decision-making in anglo-american countries

Gormley, Jay and Tata, Cyrus; Spohn, Cassia and Brennan, Pauline, eds. (2019) To plead? or not to plead? 'Guilty' is the question. Re-thinking plea decision-making in anglo-american countries. In: Handbook on Sentencing Policies and Practices in the 21st Century. Routledge, New York, NY, pp. 208-234. ISBN 978-0367136499

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Abstract

In the daily work of the criminal justice process, the relationship between plea decision-making and sentencing is one of the most pressing questions. It is thought to influence how defendants plead, affect caseload pressures, and potentially have implications for the presumption of innocence as well as the experience of victims. This essay evaluates the arguments for and against the practice of altering a sentence as a consequence of a plea of ‘not guilty’ or ‘guilty’ (what we call 'the Plea-Dependent Sentence Differential'). It also appraises the state of international knowledge about the practice and proposes agendas for future research. The essay is organized as follows. Section I investigates whether a sentence differential violates the cherished values of the presumption of innocence and the notion of equality before the law. It examines the criticism that the sentence differential operates to penalize those who continue to plead not guilty by imposing (or threatening to impose) a higher sentence than if they plead guilty. It also considers the criticism that the sentence differential may have disparate impacts on different groups (specifically minorities and those who are socially and economically disadvantaged). Section II reflects on why, in light of the dangers to principled sentencing and liberal rule of law values, justice systems continue to persist with guilty plea discounts. Finally, Section III investigates the complex dynamics of how the experiences of defendants may be affected by the sentence differential, drawing on some recent empirical evidence from Scotland.

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