NCJ Number
144572
Journal
Yale Law Journal Volume: 101 Issue: 8 Dated: (June 1992) Pages: 1909-1968
Date Published
1992
Length
60 pages
Annotation
This article addresses the arguments of those who would abolish plea bargaining and suggests reforms in plea bargaining that would make it more efficient.
Abstract
Part I uses the perspective of classical contract theory to assess the case for prohibiting plea bargaining. The authors argue that none of the standard arguments of limiting contractual autonomy hold in the plea bargaining context. Those standard arguments focus either on a defective bargaining process or on systematically unfair or distributionally unjust outcomes. The contemporary plea bargaining process exceeds the process standards applied to other sorts of bargaining, and the outcomes, although imperfect, are also far removed from the kinds of problems that would ordinarily lead to a limitation of contractual autonomy. Part II uses the techniques of modern decision analysis and bargaining theory to analyze the strategic interaction of parties to plea bargains. This approach suggests that the core objection to plea bargaining is not intrinsic to the relationship, but structural; strategic impediments to efficient bargains lead to a pooling of guilty and innocent defendants. Part III considers the implications of this analysis for legal doctrine. The authors argue that the abolition of plea bargaining would not solve, and might even aggravate, the problem of failing to separate the innocent from the guilty. They suggest that by altering the doctrine that governs such issues as when and how bargains are enforced, the consequences of defendants' mistakes, and how background prices are set, the state can reduce the incentives for strategic bargaining and improve the efficiency and fairness of the plea bargaining process. 183 footnotes