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October 5, 2009

"The Prisoners’ (Plea Bargain) Dilemma"

The title of this post is the title of this important article in Summer 2009 issue of The Journal of Legal Analysis. Here is the abstract, where I have placed in bold the important conceptual contribution of this piece by Professors Oren Bar-Gill and Omri Ben-Shahar:

How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences?  Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain.  Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination.  The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants.  This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants.  Absent the plea bargain option, many defendants would not have been charged in the first place.  Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

October 5, 2009 at 08:46 AM | Permalink


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Obvious cat is obvious.

I have long said that plea bargains are contrary to sound public policy and I've never accepted that notion that one can voluntarily waive a constitutional right. If it can be waived, it's not a right. I believe a sound understanding of both the common law tradition and our constitutional tradition *demands* that a trial take place.

The problem with jury trials in a modern society is that are inherently inefficient means of risk distribution. They present and all or nothing choice for both the offense and the defense. Plea bargains allow both parties to, in effect, hedge their bets. The problem with this is, as the authors see, this hedging doesn't take place in an environment of equality. Plea bargains, logically, are akin to legalized blackmailing.

What's even worse is that the practice of plea bargains corrupts the foundation of legal truth finding, the jury. It is first and foremost the task of the jury to find the facts, not for the prosecutor and the defendant to collude to undermine that role. That's one of the reasons I believe plea barging is unconstitutional; it undermines the right to a trial of one peers.

Posted by: Daniel | Oct 5, 2009 12:01:17 PM

I am struggling with your assertion that “our constitutional tradition demands...a trial.” As far as I know, at the time of the Founding defendants were permitted to plead guilty and forego a trial. They may have done it less often than now, but they still did it. The Constitution, therefore, certainly cannot be interpreted to demand that this practice be abandoned.

Posted by: Marc Shepherd | Oct 5, 2009 1:11:07 PM


Umm, I find your assertion that rights cannot be waived to be strange in the extreme. Do you view searches based on consent to be equally invalid? Or someone choosing to skip the polls on election day? An even more stark example would be someone committing suicide.

Rights need not be exercised by all parties who possess them.

Given the realities of modern sentencing if you were to actually ditch plea bargaining you would end up with a situation where the defendant would be just as coerced into pleading guilty, only now it would be against the full indictment including the massive mandatory minimums contained therein. Unless you somehow believe that a trial right is somehow a trial obligation on the part of the defendant? Given how long throwing oneself on the mercy of the court has been part of our law I just don't see that as realistic.

Posted by: Soronel Haetir | Oct 5, 2009 1:57:00 PM

Marc. I would say that it was the exception that illustrated the rule.

Soronel. If rights are not exercised by the parties that have them they are not rights. Your position is like saying it's possible to be a human being and neither drink eat or breathe. Maybe so; but not for long!

I refuse to worship ink on paper whether that be a Bible or Constitution. A right is only a right when it is exercised. To allow people to waive their right is the equivalent of saying people have a right not to breathe. Maybe in an abstract sense they do, but they have no human right not to breathe. Why? Because the moment you elect to waive your right to breathe is the moment you cease to be human, well a live human anyway.

Posted by: Daniel | Oct 5, 2009 4:13:59 PM

When I was an AUSA in the EDVA, the great majority of cases were resolved through plea agreements, but anyone who wanted to go to trial was welcome to do it, no questions asked.

Daniel, I agree with many of your criticisms of plea bargaining, but not with your assertion that, in order for something to be a right, it must be exercised. Why should a defendant who thinks he's better served by a plea bargain not be able to negotiate for one? The whole purpose of having rights is to EXPAND, not limit, the options of the person holding them.

Posted by: Bill Otis | Oct 5, 2009 4:47:03 PM


There is a difference between a right and an option. A people and a country do not go to the hassle and bother of codifying a right in a Constitution unless it represent a critical social value. It makes no sense to say that there is a right to freedom of assembly if people don't assemble or a right to freedom of oral speech in the land of the deaf and dumb. When a people institutes a right there is a strong presumption amounting to an obligation that such a right be exercised. People do not enshrine a right into a Constitution simply to give themselves the option to do something on a rainy day when they are bored with video games. The right to a trial by jury is not a people saying this is something we can do; it's a people saying this is something we are going to do.

If the American people no longer want to have a trial by jury, that's their choice. They can amend the Constitution and get rid of it. But so long as it's in the Constitution rational democratic principles demand that, at least, there is a strong public bias against plea bargaining. Because it is to mock truth to say there is a right to a trial by jury when 80% of court cases never see a jury.

And I think it's irrelevant why this situation has come to pass, whether it's better for the defendant or no. The Constitution demands, certainly it expects and presumes, that there will be a trial. That's not happening. The trial by jury is the way our constitution expect business to be done and we simply are no longer doing it. I can't think of a more pure definition of an unconstitutional practice.

Posted by: Daniel | Oct 5, 2009 5:08:31 PM

Sorry, Daniel, but that's just nonsense. All rights are options. You have a right to remain silent, but you can also testify if you so choose. You have a right to counsel, but you can self-represent if you so choose. You have a right to be free of unreasonable searches, but you can let the police in voluntarily, if you so choose. The list goes on and on.

Posted by: Marc Shepherd | Oct 5, 2009 5:25:39 PM

Marc. All rights are options. But they are not merely options. They are obligations, expectations. That's what a social contract means. It makes no sense to say there is a contract when one party can willy nilly drop it whenever they want, whenever it's in their own selfish best interest to do so.

To claim otherwise is not nonsense; it's a defense of anarchy.

Posted by: Daniel | Oct 5, 2009 5:33:59 PM

Plea bargaining wasn't a widespread practice until the 19th century and in some places the early 20th century (or later). The Supreme Court didn't officially ratify it until about the 1970s. For a long time, even once plea bargaining had become the norm, many commentators were uneasy with this and thought it corrupted the entire justice process. So, Daniel's view may be closer to how many judges and lawyers thought about the trial process for a large part of our history. Nowadays of course, the doctrinal line is that we have to allow and even encourage plea bargaining because otherwise the justice system would grind to a halt. One wonders though, maybe we shouldn't be criminalizing behaviors left and right if we don't have the resources to actually try all those defendants? If everything had to go to trial, or anyway if some percentage more than 2-3% of cases had to go to trial, the inherent expense and time of a trial system could be thought of as a built-in check on the government. On the other hand, trials in the pre-plea bargaining era were very quick and summary -- like 6 trials in a day. Ironically, trials take so long now and are so costly because we have expanded trial rights to the point where neither defendants nor prosecutors can really afford to try the average case. Some jurisdictions have experimented with going back to a summary trial process (Philadelphia comes to mind).

Posted by: lawstudent | Oct 5, 2009 6:42:17 PM

Wow, this one sure created a bunch of useless lawyer blather. Won't any of you defenders of justice admit to the real fact that in many cases prosecutors especially lying less than honorable AUSA's use the plea bargain bring the threat of the full power of the government to bear without regard to any consideration of whether justice is really being served? They are well aware of how to manipulate the "system" and that there are few who can afford the expense or the risk of "fighting city hall." The only thing that matters to these self serving US Attorney wannabes is padding their conviction rate to "prove" what a good job they are doing. They will lie to anyone from co-defendants to family members, make promises of confidentiality and then play he said she said to turn one against another even when they know that the testimony that they are using is fabricated. Anything to get the defendant to agree to a guilty plea. Want examples? They are out there just visit the WSJ blog among others and you will find them. Is a plea bargain a good thing? Sure it is if you have honorable people involved.

Posted by: HadEnough | Oct 5, 2009 6:48:21 PM

Interesting paper. The key is the last paragraph of the last footnote that ends the article:

California State Senate (2005): “This bill continues an approximately 25-year trend in California criminal law of increased sentences and other changes that have increased the power of prosecutors. The steady increase in penalties...has greatly enhanced prosecutors’ leverage in plea bargaining. Prosecutors can initially seek maximum penalties and then accept a plea to a lesser charge....[A] defendant facing a life-term sentence is much more likely to plead guilty, generally to a lesser offense than originally charged[.]...In this way, prosecutors may be able to avoid trials in cases where they have difficulty proving the charges beyond a reasonable doubt.”

The bottom line is that the state is and will always be in control of plea bargaining. There is one aspect the paper skims over, and that is the risk of trial. Take the Polanski case as an example. As an analogy, the paper has one P pointing one gun with one bullet in it. Polanski had five guns with one bullet in each (five counts) pointing at him. Bill Otis, to paraphrase, stacked charges as insurance against a skeptical jury and appellate review.

Factor in the jury. Anyone that has been following the comments on news articles by potential jurors in the Polanski case knows that that the police do not bring charges and prosecutors do not charge unless the person is guilty. In other words, there is a presumption of guilt and the burden on on the defense to prove innocence. Those commentators who read the victim's grand jury testimony and read the complaint, or read articles about them, are positive Polasnki is guilty on all counts. Maybe he is, but this goes to the heart of the plea bargaining process and to the heart of our judicial system. For confirmation, see Cokie Roberts On Polanski: "Just Take Him Out And Shoot Him" (VIDEO) and read the comments.

Maybe an interesting followup question would be this: are fair plea bargains and trials possible when trial by media is so prevalent and how does news coverage empower P's bargaining power?

Posted by: George | Oct 5, 2009 6:52:34 PM

For clarification, "potential jurors" means future jurors in any case. Polanski will not likely face a jury.

Posted by: George | Oct 5, 2009 6:54:34 PM


That boils down to a question I've asked numerous times, yet still haven't thought of an approach to attempt an answer to. How well do plea bargains in the aggregate reflect the true underlying conduct? My sense is that in drug and property cases plea bargains generally understate provable conduct, drug quantities, number of burglaries, etc, while assaults and other violence related crimes are either more reflective or overstate provable conduct, degree of malice etc (accepting that malice can in fact be proven).

Naked plea and conviction rates don't bother me per se, I would be far more bothered if every case went to trial yet most defendants were acquitted. Ideally the conviction rate would be 100% with no factually innocent defendant included in the count. Without the benefit of a time machine I doubt we'll ever be able to answer the question I'm trying to ask.

Posted by: Soronel Haetir | Oct 5, 2009 7:09:52 PM

The adversarial trial comes from the Scholasticist method of coming to a conclusion by disputation. It violates the Establishment Clause. An inquisitorial trial does not.

In the old days, back in 1250 AD, the jury had knowledge. The jury had walked the metes and bounds of the disputed land 10 years before, and knew the criminal since childhood. Today, those with knowledged are excluded, ending both the advantage of knowledge and of the wisdom of the crowd. Both are small but real advantages.

Today, only ignoramuses are allowed on the jury. Then, by their gut instincts, they can detect the truth. Lie detectors are not allowed, as too unreliable. The gut feelings of ignoramuses are allowed. The trial is like an example of a psychic friends' connection. What the jury is detecting is the likeability of the witness and of the lawyer. So blonde, chesty, breathy witnesses do well. Litigators have to be physically attractive for that reason. This is seance, supernatural, anti-scientific garbage.

Daniel must have attended law school. Its indoctrination not only destroyed high school, but his psychology training. He believes in the supernatural now if he believes the trial serves to detect the truth.

It is a competition of Broadway fairy tale productions. You laugh, you cry, you come out whistling the tunes, and it's a hit.

Posted by: Supremacy Claus | Oct 5, 2009 7:43:56 PM

SH: The standard of burden of proof is beyond a reasonable doubt, that means 80% certainty roughly. That is an appallingly low certainty for the consequence, being sent to a cage for a long time, being executed.

No one knows the innocence rate on death row. No one has tested the 3000 inmates there. There is roughly one innocent proven for every 4 or 5 executions a year. That roughly corresponds to the 80% certainty of the beyond a reasonable doubt burden of proof. This error rate is after $million is spent to assure against any error.

I imagine the error rate in plea bargaining is higher than 20%. At trial, the prosecution gets a guilty verdict around 70% of the time. Again, that meets the expectation of beyond a reasonable doubt. You are proposing a burden of proof of beyond any doubt whatsoever. Tell us how that should happen outside of about half the trials, where there is solid evidence, such as a video tape of the murderer taking out cash with the victim's ATM card a half hour after a murder.

Posted by: Supremacy Claus | Oct 5, 2009 7:51:22 PM


The trial conviction rates I've seen are much higher than 75%, unless you are going on the basis of being acquitted of some charges but not others. I am only interested in cases of complete acquittal on the basis that the defendant likely could have bargained away any counts that the jury failed to convict on.

I suppose some states could have trial rates that low.

Posted by: Soronel Haetir | Oct 5, 2009 8:03:57 PM

George --

"Bill Otis, to paraphrase, stacked charges as insurance against a skeptical jury and appellate review."

I wouldn't say that's a paraphrase. I'd say it's an outright lie.

Indictments are public documents. Go find one, just one, that I signed that "stacks charges" or even contains multiple charges. Just one.

If what you say is true, you shouldn't have a bit of trouble. I use my real name here, and you already know that I worked in the EDVA. So you have all the info you need to find the evidence to substantiate your claim.

So let's see it. No dodging, no evasion, no changing the subject. Name and quote the indictment I signed that stacked charges.

Posted by: Bill Otis | Oct 5, 2009 8:43:21 PM

Mr. Otis, no lie. We disagree on the definition of stacking charges. You wrote:

The problem is that there isn't going to be any agreed definition of either "count-stacking" or "just." What is count-stacking in the eyes of defense counsel can be, in the eyes of the prosecutor, insurance against a compromise verdict or a partial appellate reversal. And what is "just" in the eyes of defense counsel will often be no sentence at all; anytime the accused goes to trial, by definition the defense's position is that no sentence whatever is warranted.

Posted by: Bill Otis | Jun 12, 2009 11:53:25 AM

Under my definition, the California State Senate quote above also stacks charges to extract a plea. Upon reading your quote again, you do not say you did that, but imply it was your duty to do so, so on the presumption you did your duty.... you did. So I revise my argument accordingly.

Nothing personal, btw.

Posted by: George | Oct 5, 2009 10:37:32 PM

SC. "He believes in the supernatural now if he believes the trial serves to detect the truth."

I believe that a trial serves to *determine* the truth. That is, whatever the jury says is true is what is legally true. Does legally true mean scientifically true or supernaturally true? Nope. But the jury's role is to settle the law, not settle anything else.

Posted by: Daniel | Oct 6, 2009 12:28:48 AM

That is the propaganda. The lawyer just wants to manipulate ignorant people. If the aim were to even get at the legal truth, 1) people with knowledge would be allowed; 2) only the first secret vote would be allowed; 3) no discussion would be allowed, since discussion means the juror with the loud mouth gets to bully the rest who want to go home; 4) notes and questions would be allowed; 5) independent investigation would be allowed; 6) accountability would be allowed in the form of negligence claims. The jury as it operates today is an anti-scientific catastrophe and abomination.

Posted by: Supremacy Claus | Oct 6, 2009 1:50:35 AM


The jury exists to settle facts not law. As for the rest of your assertions in this thread I have yet to see an answer to other rights being waived.

Let's take an easy one, the right not to testify in one's own trial. Just because it is a good idea in most cases are you going to compel the few whom testifying will help not to do so? Perhaps there is an affirmative defense to establish or mitigating circumstances of some other nature that cannot be established otherwise, what is your answer?

You have the right to sit on the dock and watch someone drown, so long as you didn't put that person in the position. Are you saying that you are in fact obligated to do so, even though legal authority says you also have the option of attempting rescue?

If these cases are different, please explain how. Personally it just seems that you would prefer that all cases be force to trial for policy reasons, not legal and certainly not constitutionally mandated ones.

Posted by: Soronel Haetir | Oct 6, 2009 7:48:07 AM


Now you beginning to sound like Bill. Context matters. I was drawing a distinction between law and science and law and religion. Given that distinction, it is the jury's role to settle the law and not settle scientific or religious disputes. I stand by my comment 100%. Reading comprehension is a good thing.

As for the rest, you fail to distinguish between theory and practice. Let me ask you this question. If everything in America were to stay just as it is right now, except one thing. One, and only one, person voted. Would that make us a democracy or would that make us a dictatorship? One can argue that we are still a democracy because all the other millions of people have a "right to vote" in the sense they have an option to use the electoral franchise. I say that response is silly. Because in practice if one and only one person voted you have a dictatorship of that one person. If that's true then a right in a democratic sense must mean something more than simply a option in a free will sense of the word option. It must connotate an expectation or a duty of some type.

You keep using all these examples and slinging around the word "right" like candy. I disagree that anyone has a "right" to watch someone drown. period. That's not a right. They may have an option to do so but that option doesn't make it right and is not a right in a constitutional sense of the word right.

Posted by: Daniel | Oct 6, 2009 12:07:26 PM

In your voting example I would ask if all the rest are prevented from voting or just don't care to do so. If they have the option they have abdicated responsibility, and will likely get what they deserve.

There are few tasks that are in fact mandatory for citizens, a few more that include non-citizens. None of which I would put in the 'rights' category. The few things I'm thinking of are jury service for all citizens and answering a draft call in the case of male citizens, and responding to the census in the case of non-citizens. Even jury duty can be avoided in most locales by not registering to vote. Avoiding the draft and census entail their own punishments, unlike registering to vote.

Rights are powers held by individuals against government, I fail to see any rational basis for stating they are unwaiveable. You have the right to put the government to its burden of proof, but I see no obligation on your part to do so. If you believe as SC does that 20% or more of those convicted are actually innocent, ignoring whether the punished acts should be crimes in the first place, then there are more serious problems that abolishing plea bargaining will do little to alleviate.

In the case of the drowning man, you have the right insofar as the government will not punish you for doing so, nor facilitate such punishment through the civil courts. You of course face other forms of punishment from everyone else, just not via the forces of organized society as so aptly put in Rothjury and the cases it built on.

Posted by: Soronel Haetir | Oct 6, 2009 12:53:18 PM

There was a time not so long ago, in a federal district that shall remain nameless, where a coordinated effort by the defense bar resulted in a very large number of defendants refusing to take deals or waive time. The first few defendants in the queue went to trial and got hammered, but the system quickly fell to its knees, and the U.S. Attorney's office relented by offering a much more generous "standard offer" to defendants. It illustrates the point of the article. It's ironic, though, since the defendants asserted their collective power for the mere purpose of bargaining it away.

Posted by: punchy | Oct 6, 2009 2:36:51 PM

George --

OK, no harm, no foul. I over-reacted.

Just to set the record straight, while I APPROVE charging multiple counts corresponding to all the defendant's behavior, and do not regard that as illicit (unless the counts are duplicitious or multiplicitous), I did not PRODUCE, DRAFT OR SIGN any such indictments.

I was the head of the appellate division. I handled cases at the end of the pipeline, not the beginning. So I was not in on the drafting stage.

You probably didn't know that, or had forgotten it, so, while I was understandably indignant, I got overheated in responding to you. I should have just calmed down.

Posted by: Bill Otis | Oct 6, 2009 7:22:27 PM

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