« NJ Supreme Court clarifies legitimacy and importance of considering post-offense conduct at sentencing | Main | Should problematic police be on a registry like sex offenders? »

December 16, 2014

"Why Plea Bargains are Not Confessions"

The title of this post is the title of this interesting new paper by Brandon Garrett now available via SSRN. Here is the abstract:

Is a plea bargain a type of confession? Plea-bargaining is often justified as at its core a process involving in-court confession. The U.S. Supreme Court’s early decisions approved plea bargains as something “more than a confession which admits that the accused did various acts.”

I argue in this Article that plea bargains are not confessions — they do not even typically involve detailed admissions of guilt. The defendant generally admits to acts satisfying elements of the crime — a legally sufficient admission to be sure, but often not under oath, and often not supported by an extensive factual record. Because plea bargains typically contain only formulaic admissions, they have limited preclusive impact in future cases. The modern trend is to find issues not precluded by a guilty plea, except perhaps as to elements of the charged offense. The problem with the lack of adjudicated facts arises when other actors later seek to attach collateral consequences on that conviction.

More careful development of the factual record could help to prevent at least some guilty pleas by innocent defendants, but also important, it could produce reforms to more narrowly target the collateral consequences that now attach to entire categories of convictions. That is why I view it as particularly important to understand precisely why plea bargains are not “more than” and are in fact much less than confessions.

December 16, 2014 at 09:14 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Why Plea Bargains are Not Confessions":


In all cases, plea bargains are fictitious, as are most legal doctrines. The lawyer believes in my cousin, Santa, but not in me. My cousin has been really good to the lawyer giving him ownership and control of $trillions. the lawyer peddles fairy tales to make a lot of money. The lawyer hierarchy are all quacks commanding men with guns to impose their sick doctrines.

Posted by: Supremacy Claus | Dec 16, 2014 10:39:26 AM

here I thought the ideal of a plea bargain was

I'm really sure you can't prove a damn thing you have me charged with. But i am also pretty sure you have the system so rigged i'm fucked either way so might as well get a good deal before you shaft me.

Posted by: rodsmith | Dec 16, 2014 11:26:24 AM

Hmmm. When I was in court entering pleas with my clients the judge insisted on eliciting "a factual basis for the plea." Did the facts admitted by the defendant under oath constitute the crime charged. If the charge was rape then the defendant had to admit that it was his weeny and not someone else's. And so on. I don't know what state the author of this blog works in but it was not the experience I had back in the Great State of Missoura a few years back.

Posted by: Liberty1st | Dec 20, 2014 11:21:21 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB