Volume 35

Breaking the Faustian Bargain: Using Ethical Norms to Level the Playing Field in Criminal Plea Bargaining

by David A. Lord

Every day in courthouses throughout the United States, defendants are faced with a Faustian bargain: they can accept a plea deal that minimizes the pain of immediate incarceration, but with potentially devastating long-term consequences. This dilemma is fostered by the asymmetrical power structure in criminal plea bargaining, which enables prosecutors to extract guilty pleas in a manner that undermines the fairness of the court system. The criminal justice reform movement has sought to balance this playing field through reforms like ending mandatory minimums. These efforts will ultimately be insufficient because these initiatives only impact the fundamental problem at the margin and these reforms rest on an insecure foundation of shifting politics. In this Article, career prosecutor and ethics instructor David A. Lord argues that insufficient ethical guidance for prosecutors, specific to plea negotiations, is the core problem that enables this travesty of justice to continue. This Article looks at cases such as Bill Cosby’s and examines the Model Rules of Professional Conduct to offer an ethical rubric for criminal plea negotiations that levels the playing field between the prosecution and defense. This ethics rubric aims at fostering a more just culture of prosecution by providing specific questions that a prosecutor should ask before making a plea offer and providing norms that can be used both by supervisors and in legal instruction when discussing plea negotiations and prosecutorial ethics.

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