Ethical Issues Surrounding Prosecutors and Plea Bargains

As the prosecution is responsible for bringing criminal trials against those accused of breaking the law, it would seem that they are ethically bound to prosecute them to the fullest extent of the law. However, plea bargains allow prosecutors and defendants to negotiate confessions of guilt, helping the accused to get a more lenient sentence or less serious charge. The problem with plea bargains is that they can be used to unfairly pressure innocent parties into confessing instead of going through the long and drawn-out criminal case. In addition, it can be used to establish a fast trial for a defendant who is truly guilty, giving them more flexibility and leniency than they deserve. This concept can be problematic for defense attorneys who seek to do what they can to help the client while maintaining professional relationships with prosecutors. The following will address ethical issues surrounding prosecutors and plea bargains in an effort to provide a comprehensive review of the ethicaland moral theory elements surrounding this aspect of criminal justice. The ethical issues discussed include relativism, virtue ethics, ethical formalism, ethics of care, utilitarianism, egoism, and situational ethics. The issue of ethical issues surrounding prosecutors and plea bargains are addressed through the paradigm of each of these theories, to provide a well-rounded understanding of the topic. While prosecutors and plea bargains can be both beneficial and detrimental at times, their inherent morality ethicality is very much dependent on an individual’s subscribed ethical perspective.

Ethical Relativism

Ethics relativism can impact how individuals define concepts. The Supreme Court once defined the prosecutor as “in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. . . . It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one" (Caldwell, 2011). While this definition seems airtight, individual understandings of “legitimate” and “improper” can have different meanings. Ethical relativism addresses the fact that many people disagree with what is moral because they are basing their perspectives on their individual and varied backgrounds and cultures. To understand this, it is necessary to provide varied viewpoints of the elements of a plea bargain. Opponents argue that trials should be used to resolve criminal cases in order to truly reach a fair and appropriate result (Baum, 2013). When defendants waive their trial rights victims do not receive the justice they are entitled to. The pressure to take a plea bargain has also impacted those who were innocent, yet pled guilty in order to avoid a long arduous process. It can be used as a weapon to pressure innocent people to plead guilty and as a cushion for guilty parties to receive leaner sentences (Frontline, 2004). Understanding the prosecutor’s role and plea bargain from this perspective supports opposition and disapproval for the concept. However, because the concept is ethically relative, there are varied perspectives related to the ethicality of the plea bargain. In 1978, the Supreme Court supported prosecutorial pressure in the case of Bordenkircher v. Hayes (Supreme Court of United States, 1978). The final statements advised that nothing was wrong with plea bargains as a way to pressure guilty individuals to plead guilty. The courts went so far as to say that, “indeed, actual vindictiveness on the part of the prosecutor is even permissible” (Cohen, 2010). While the variety of perspectives regarding the ethicality of this topic is indicative of ethical relativism, it is important to understand the underlying ethical perspectives which produce these different perceptions.

How individuals process their ethicality and outlook can be distinguished within the categories of normative ethics, including virtue ethics, deontology, and consequentialism. Virtue ethics focuses on the character of individuals instead of on specific actions (Stoker, 1976). This ethical paradigm places significant importance on intention and whether the individual is intending to do good or to do harm (Pojman, 2009). This type of ethical paradigm is extremely elusive to identify and can vary on a case by case basis. As a result, it is difficult for those who subscribe to this ethical paradigm to make broad statements about the ethicality of topics or concepts without understanding intent. In the case of a plea bargain, virtue ethics would incorporate the guilt of the accused along with the intention of the prosecutor in order to determine if a plea bargain was the ethical route.

Deontological Ethics

Deontological ethics focus on consideration of inherent duties and rights. This is squarely focused on the legality of issues (Waller, 2005). From a deontological perspective, plea bargains are ethical because they allow support prosecutor duties and support the client's right to be represented well. The courts are very clear in their stance against prosecutors and guilty clients. Despite cases of guilt, prosecutors must do everything in their power to protect their clients and get the charges dropped, or lessened. Looking at the ethicality of prosecutors and plea bargains through this perspective suggests that it is, in fact, ethical because it follows the law of duty and client rights (King, 2008). The broad ethical issues related to the client's guilt as well as the impact on the victims and society is voided with this perspective because it provides a very targeted and clinical definition of what is right and wrong. With this perspective, ethicality is less subjective and more factual because it is based on agreed rights and duties. Ethical formalism is an example of deontological ethics and defines morality in terms of laws and rights instead of their implications. Pollock (1994) describes this as an “absolutist” system, advising that is something is wrong it is always wrong and if something is right, it is always right. As much of the law is written to be interpreted on a case by case basis, absolutist concepts relating to prosecutors and plea bargains opens a big window for corruption of the legal system as a whole. This ethical paradigm would suggest that even coercive plea bargaining is acceptable, instead of reviewing the ethical issues related to it on an individual basis. As a result of this view of plea bargains, some areas have banned the practice altogether (Acevedo, 1995). Despite this, jurisdictions attempting to ban or curb plea bargains have ended up reinstating it because of a significant backlog of cases and delayed trials.

Ethics of Care

Ethics of care focuses on relationships and a person’s attentiveness, responsibility, competence and responsiveness to a situation or circumstance. Understanding which relationship is most important to preserve is required in order to manifest this ethical outlook. The law dictates that the prosecutor’s most important relationship is to his or her client, making plea bargains the ethical choice if it will benefit them and unethical if it will hurt them (Gilligan, 1982). Some clients may wish to get the process over sooner and feel relieved with a plea bargain, even if the defendant gets a lesser sentence. However, others may feel as if justice has faltered if a plea bargain is offered, making it an unethical choice by the prosecution based on this paradigm of ethical care. The lens of “game theory” helps to determine what will be beneficial for the client in the long run. In the case of evaluating plea bargain game theory is often directed by each party’s individual motivations and expectations (Caldwell, 2011). As a result, it is essential for prosecutors to understand the needs and wants of their clients before making any offers because the ethics of care focuses solely on the prosecutor’s relationship with the client, including the attorney-client privilege.

Utilitarianism

Utilitarianism is a theory in ethics which maximizes utility in terms of maximizing happiness for the most people. It is based on consequentialism and is primarily focused on the outcome and consequences of decisions to determine their ethicality (Kagan, 1984). This type of ethical theory makes it difficult to make decisions about ethical issues surrounding prosecutors and plea bargains because the outcome is not revealed until after the decision is made (Shaw, 1998). Despite this, it can be theorized which decision will impact the most people in a positive or negative way. For example, it may be that establishing a plea bargain has other stipulations tied to it. Depending on the community the crime has impacted, one can theorize how each choice will affect the majority of individuals. By convicting guilty parties faster, plea bargain may also serve to send a message to other potential criminals, necessitating a fast response. At times, although the defendant is guilty, there may not be enough evidence to convict him at trial. If an individual guilty of killing someone or being involved in gang activity goes to trial and gets off, chances are the victims will be further terrorized. Plea bargains may provide a way to keep the community safe by taking criminals off the street, especially if the case may be difficult to prove at trial. Prosecutors with a utilitarianism approach to ethics will look at the potential end result of the plea bargain and weigh it based on the amount of harm and good it will do to the most people. With this viewpoint, even if the client may be better off with another option, the prosecutor will make the choice that benefits the most people. This sacrifice of individuals for the good of the whole is the epitome of this concept and may contradict the prosecutor’s legal responsibility to advocate for the client (Adams, 1976). This concept also contradicts with virtue ethics by suggesting that the end results justify the means, even if the process is inherently unethical (Slote, 1995). Prosecutors who lie and bluff with the defense in order to gain a plea deal would be considered unethical in a virtual ethics paradigm because they are lying to accomplish their goal. However, especially in the legal arena utilitarianism takes a “by any means necessary” approach, which supports bluffing, lying, and even cheating if the end result is beneficial (Douglas, 2007). This approach falls within the law to a certain extent, but prosecutors toe a fine line in managing the process and the end result.

Egoism

Egoism is a normative ethical approach that suggests that it is moral to do what is in an individual’s own self-interest. When this approach is applied to a prosecutor’s decision making, it can be detrimental to the interests of the client. Specifically related to the ethical issues surrounding plea deals, prosecutors looking out for his or her own interests may go for a deal to improve their case outcomes or use it to increase trial wins. This type of ethical paradigm is dangerous because it directly contradicts with the legal responsibility that the prosecutor has with the client. This increases the ethical issues surrounding prosecutors and plea bargains because it puts the prosecutor at the forefront of the decision making and leaves out other important and essential elements. Of all of the ethical paradigms, Egoism is the most dangerous. Most of the other paradigms have a rubric that involves the welfare of other people as a way to maintain ethical decision making. The inherent self-serving nature of this ethical paradigm shifts the focus and duty of a prosecutor, disabling their ability to do a fair job of client representation (Stern, 2012). The legal obligation to help others is dismantled by the premise of egoism because it places “self” above others (Floridi, n.d). This type of elevated self-interest is problematic and can lead to serious problems affecting the foundation of the legal system. While this ethical theory does not require moral agents to harm the interest of others, it is typical that what is in the agent’s best interest will be detrimental to the interests of other parties (Norton, 1976). This conflict of interest is highlighted and exacerbated when the individual is a prosecutor with the power to make significant changes to a case’s outcomes. All other moral codes are bankrupt when this mentality is being applied; meaning prosecutors could potentially take bribes and accept favors in exchange for not prosecuting to the fullest extent of the law.

Situational Ethics

Situational Ethics is founded on the principle that there is no absolute standard for morality and that love is the basic moral principle that should be used to guide ethical decision making. This is closely in line with the normative ethics that focus on intention and is just as elusive and hard to identify. An individual’s love of another can be hard to prove, especially when individuals express it in different ways (Sanders, 1988). Furthermore, the issue of humanistic love for everyone is an elusive standard with which to make practical decisions. Prosecutors are bound to think logically and legally, despite how they may feel about a person or a case. This “feel-good” ethical paradigm falls short of establishing a clear standard for morality, instead producing an elusive and intangible version of it. It is difficult to apply this thinking to plea bargains because the premise of the theory is that love for humanity is the stimulus for decision making. In addition, it does not exclude love for one’s self, providing an easy slip into Egoism ethics. As a result, this ethical paradigm is ineffective in providing an ethical standard with which to analyze the ethical issues surrounding prosecutors and plea bargains.

Conclusion

In conclusion, there are many ethical issues and perspectives relating to prosecutors and the plea bargain. Plea bargains can help the prosecutor’s clients by decreasing wait time to trial which can be stressful and straining. It can be used to convict guilty parties faster and more efficiently, maintaining court costs, keeping case backlog low and turning cases around quickly. It can also be used as a method of sure conviction when an individual has a chance of going free if they go to trial. On the other hand, it can be used coercively to force guilty pleas out of those who are innocent, and rob victims and their families of their day in court. Prosecutors have multiple different relationship considerations. They must consider the needs of their clients, their professional relationships, and their own personal self-interests. While the law advises that prosecutors must always act in the best interest of their client, it can sometimes be difficult to understand how the long term impact and unknown variables will affect a client. As a result of ethical relativism, it is understood that the implications of decisions as it relates to ethics are varied across the board. Despite the many ethical perspectives, prosecutors are legally bound to operate under the ethical theories of deontology and ethics of care. As deontological ethics focuses on duties and rights, it is an appropriate paradigm to address the ethical issues related to prosecutors and plea bargains. This ethical paradigm positions ethical issues surrounding prosecutors and plea bargains as a black and white issue, focusing on following the law and maintaining client loyalty. This is also supported by ethics of care paradigm, which focuses on relationships and stresses the importance of attentiveness, responsibility, competence, and responsiveness to a situation or circumstance.

The ethical issues related to prosecutors and plea bargains are vast. How a prosecutor makes decisions, handles clients, and addresses plea bargains is directly related to the ethical values he or she personally subscribe to. Understanding and applying the right ethics to a prosecutor position will determine whether decisions and outcomes are made on a self-serving basis, or with the community and client in mind. While the “game theory” suggests that a game of strategy must be played in order to be a successful prosecutor and negotiate a successful plea bargain, it should always be done in an ethical fashion in order to preserve the integrity of the law and its standards.

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