William & Mary Law Review


Plea bargaining and guilty pleas are intrinsically incompatible with themost commonly-accepted substantive and procedural premises of American criminal justice: Plea bargaining routinely results in punishment disproportionate to desert, and guilty pleas are an insult to procedural due process. This Article argues that the only way to align plea bargaining with our criminal justice premises is to change those premises. It imagines a system in which retribution is no longer the lodestar of punishment, and in which party-control of the process is no longer the desideratum of adjudication. If, instead, plea bargaining were seen as a mechanism for implementing a sentencing regime focused primarily on individual crime prevention rather than retribution—as in the salad days of indeterminate sentencing —and if it were filtered through a system that is inquisitorial (that is, judicially-monitored) rather than run by the adversaries, it would have a greater chance of evolving into a procedurally coherent mechanism for achieving substantively accurate results.