You Can’t Let The Victim Slap You as Part of A Plea Bargain

Plea bargains are already pretty controversial. The U.S. is one of the few countries in the world that uses them, and certainly uses them more than any other country. Essentially, a plea bargain is an agreement between the prosecution and the defense in a criminal case under which the defendant agrees to plead guilty, in exchange for the prosecution recommending a lighter sentence.

Supporters of plea bargains argue that they encourage those who are truly guilty to admit their guilt, thus foregoing the necessity of a trial, saving valuable judicial resources. There are those who oppose plea bargains, as well – arguing that they encourage (or even coerce) innocent defendants to plead guilty, thus depriving them of the right to a fair trial.

However, regardless of their opinion on the utility of plea bargains, most would agree that they were not meant for this. According to the ABA Journal, a prosecutor in West Virginia has been suspended from his job for one month because he proposed a plea bargain which would allow the victim of the alleged crime to slap the defendant, as part of the defendant’s punishment.

Apparently, the prosecutor sent this proposal to the defense attorney as a joke. Much to his shock, the defendant accepted it. Of course, the judge refused to approve the agreement, which is required before a plea bargain is implemented. The prosecutor’s supervisor called his conduct “unacceptable” and suspended him for a month.

While it’s true that the prosecutor’s conduct was highly unprofessional, and corporal punishment hasn’t been used as a punishment for crimes in any U.S. state for over 50 years, this still raises some very interesting legal and ethical issues. If the prosecutor proposes a punishment, and the defendant accepts it, should the agreement not be honored? Intuitively, one might say “yes” – after all, the prosecutor (the person whose job it is to ensure that the guilty are punished) believes that the punishment fits the crime, and if the defendant is willing to accept the punishment, so much the better. Of course, one could argue that any “punishment” the defendant is willing to take is no punishment at all. I wouldn’t find that argument terribly convincing, but there it is.

On the other hand, a court cannot impose a punishment which is not provided for in the law. Currently, no state law allows for judicial corporal punishment. Therefore, a judge cannot legally approve a plea bargain that calls for it, even if the defendant “consents” to it. A plea bargain is not a license to go outside the legally prescribed range of punishments for a particular crime; it’s just an agreement that allows the defendant to be subjected to the lower end of that range. And since corporal punishment hasn’t been used in any state since the 1950s, a plea bargain cannot include it.

This case also illustrates that, when it comes to executing their official duties, legal professionals should not joke around. This applies doubly to prosecutors who are bound to extremely strict ethical rules, in addition to the ethical rules that bind all lawyers.

Lawyers certainly don’t have to be cold, humorless people. What they do need, however, is the knowledge that there is a time and a place for jokes, and times when absolute seriousness is required, and the ability to tell the difference.

Pop quiz: a person has been charged with a crime – his fortunes, freedom, and maybe even his life, are on the line. Which of the above 2 situations is this? It should go without saying that such situations warrant seriousness. The fact that the defendant accepted the prosecutor’s offer (which his attorney hopefully advised him against) is irrelevant – the offer never should have been made in the first place.