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Apologies and plea bargaining.

Etienne, Margareth
June 4, 2015

Source: (2007) Marquette Law Review. 91(1): 295-332.

Theoretically, encouraging apologies early in the criminal process may be a laudable goal given the potential benefits
of apologies to victims, offenders, and communities. … Given the overwhelming portion of cases that are resolved
through guilty pleas, we argue that most defendants are unlikely to participate in pre-sentencing remorse or apology
rituals without regard to the effect of the apology on plea bargaining outcomes. … Thus, while taking seriously the claim
that apologies might have a beneficial role to play in criminal cases outside of sentencing, we find it unrealistic to expect
that most defendants would participate in remorse or apology rituals without regard to the effect of the apology on
the outcome of their criminal cases. … However, the factors at play in plea negotiations are sufficiently distinct from
those in sentencing that the role of remorse in the plea negotiation context warrants close and independent analysis. …
Accordingly, given the absence of direct victim and offender participation, apologies in the context of plea bargaining
may be less effective than in other contexts. … Thus, even absent the impact of an apology on the prosecution of the
case, an apology may affect the defense of the case, likely resulting in a less favorable plea agreement for the defendant. (Author’s abstract).


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