NCJ Number
55213
Journal
Yale Law Journal Volume: 84 Dated: (1975) Pages: 683 - 703
Date Published
1975
Length
21 pages
Annotation
STANDARDS OF CONDUCT FOR AUTHORITIES INVOLVED IN THE PRESERVATION OF HUMAN DIGNITY AND ISSUES ASSOCIATED WITH ENTRAPMENT, INFORMED CONSENT, AND PLEA BARGAINING ARE ADDRESSED.
Abstract
LASSWELL'S WORK IN THE LEGAL FIELD RECOGNIZES THAT THE LAW IS AN INTEGRAL PART OF THE SOCIAL SYSTEM, REPRESENTING A DECISION PROCESS FOR THE FORMULATION AND IMPLEMENTATION OF POLICIES. EMPHASIZING A CONTEXTUAL AND POLICY-ORIENTED APPROACH TO THE DECISION PROCESS, LASSWELL HAS SOUGHT SOMETHING MORE DISCRIMINATING THAN TRADITIONAL LEGISLATIVE, EXECUTIVE, AND JUDICIAL DISTINCTIONS. HE NOTES SEVEN QUESTIONS IN DECISIONMAKING THAT CONCERN THE COLLECTION AND PROCESSING OF INFORMATION FOR DECISIONMAKERS, THE DEVELOPMENT OF RECOMMENDATIONS, THE PRESCRIPTION OF RULES, THE INVOCATION OF RULES WITH REGARD TO CONDUCT, THE APPLICATION OF RULES, THE APPRAISAL OF OPERATIONALIZED RULES, AND THE TERMINATION OF PRESCRIPTIONS AND ARRANGEMENTS ENTERED INTO WITHIN THE FRAMEWORK OF RULES. THE WORK OF LASSWELL CONFIRMS THE NOTION THAT FREEDOM MUST BE THE PRIMARY GOAL OF POLICY IN POLITICS AND THAT RESPECT FOR HUMAN DIGNITY MUST BE THE ULTIMATE CONCERN. LEGAL PROCESSES DESIGNED TO PROTECT INDIVIDUAL ENTITLEMENT TO MAKE DECISIONS, FREE OF COERCION OR DECEPTION, ARE RELATED TO ENTRAPMENT INTO CRIMINAL CONDUCT, INFORMED CONSENT TO RECEIVE MEDICAL THERAPY OR BECOME INVOLVED IN EXPERIMENTATION, AND BARGAINING FOR A GUILTY PLEA. ENTRAPMENT IS GENERALLY CATEGORIZED AS A DEFENSE FOR THE AVERAGE CITIZEN RATHER THAN AS AN OFFENSE BY AUTHORITIES. THE CONCEPT OF INFORMED CONSENT HAS BEEN EMPLOYED TO EMPHASIZE A PATIENT'S OR SUBJECT'S ACTUAL STATE OF MIND, KNOWLEDGE, OR UNDERSTANDING IN GIVING (NOT DENYING) CONSENT. THE PLEA BARGAIN IS MORE COMPLICATED THAN ENTRAPMENT OR INFORMED CONSENT. IT CONCERNS THE CONDUCT OF THREE AUTHORITIES (PROSECUTOR, TRIAL JUDGE, AND DEFENSE COUNSEL) IN THEIR RELATIONSHIP TO THE ACCUSED CITIZEN. THE TEST OF A VALID PLEA OF GUILTY OR NOLO CONTENDERE IS THAT IT BE BOTH VOLUNTARY AND INTELLIGENT. STANDARDS OF CONDUCT TO SAFEGUARD THE ACCUSED CITIZEN'S RIGHT TO DECIDE ON HIS OR HER COURSE OF ACTION ARE DISCUSSED, WITH ATTENTION GIVEN TO THE AMBIVALENCE OF THE LAW IN CERTAIN INSTANCES TOWARD HUMAN DIGNITY AND AUTONOMY. CASE LAW IS CITIED. (DEP)