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May 14, 2022

"Plea Bargaining’s Uncertainty Problem"

The title of this post is the title of this notable new article authored by Jeffrey Bellin available via SSRN. Here is its abstract:

While commentators roundly condemn plea bargaining, the criticism can be as muddled as the practice itself.  Critics’ primary target is the “trial penalty.”  But a differential between guilty-plea and trial sentences seems inevitable in any system that allows defendants to concede guilt.  And, as a new wave of “progressive prosecutors” is demonstrating, gaps between (unusually lenient) plea offers and long (potential) post-trial sentences are not only a strong incentive to plead guilty but also a powerful tool for reducing American penal severity.  Other critiques point to flaws that parallel those found in the broader system, overlooking that plea bargaining is typically a reflection of these flaws, not their source.

Finding the traditional critiques lacking, this Article highlights uncertainty as the core problem with plea bargaining.  It is easy to overlook uncertainty because analysis of plea bargains usually focuses on cases after they have been resolved.  Yet from the perspective of someone accused of a crime who is deciding whether to plead guilty, uncertainty is key.  And while some uncertainty is inevitable, in many scenarios, plea bargaining turns the defendant’s choice into something resembling a floor bet at a Las Vegas casino — a solemn spectacle of plea-bargaining roulette.

Identifying uncertainty as plea bargaining’s distinct contribution to American dysfunction is important for two reasons. First, it provides a realistic blueprint for improving the largely unregulated plea-bargaining process — this country’s dominant mechanism for resolving criminal cases.  Second, by suggesting that plea bargaining is not the primary source of other important problems, like excess severity or wrongful convictions, the analysis helps to redirect reform efforts targeting those important problems to areas where they may be more effective.

May 14, 2022 at 12:00 PM | Permalink


Someone might want to tell the author that uncertainty is part of most important decisions in life, and surely (in the rare close case) of the alternative to plea bargains -- trials.

There is one thing of which a defendant can be certain, however: Did he do the things he's charged with doing? He should just tell the truth about that.

I know that the suggestion to just tell the truth is considered scandalously Puritan and simple-minded, because "more sophisticated" thinkers always come up with a reason not to -- as do, we might remember, the 10 year-old's who want to evade the consequences of taking the cookie out of the jar. It was always the cookie's fault, or the jar's fault, or mom's fault, etc., etc.

For those of us who aren't buying it from the 10 year-old, we won't be buying it from the "more sophisticated" defendant either.

The reason they go for the plea bargain is that they're going to get wiped out at trial and they know it.

Posted by: Bill Otis | May 14, 2022 2:34:41 PM

As long as we use judges and juries rather than "truth detectors," uncertainty is unavoidable.

Discovery rules can reduce uncertainty by making sure that both sides know the evidence. But whether you are talking about civil or criminal cases, discovery can only go so far, and attorneys are still, at best, making educated guesses about the likely results at trial.

Similarly, consistency by appellate courts can also reduce uncertainty. But, there still remain too many evidentiary rules in which judges have some discretion as to whether certain evidence should be admitted. And not knowing until trial what evidence will be admitted increases uncertainty.

Posted by: tmm | May 14, 2022 10:00:24 PM

I agree with Mr. Otis that, "The reason they go for the plea bargain is that they're going to get wiped out at trial and they know it." But this has nothing to do with whether the defendant is innocent or guilty. I wish I lived in his world in which all an innocent person has to do is tell the truth at trial, and they are sure to win. But that's obviously not the world we live in. Otherwise why would any innocent person spend a fortune on lawyers, investigators, and expert witnesses?

Most people can't afford to spend a fortune. Thousands of innocent people in the US who took his advice ended up spending tens of thousands of years in prison before being exonerated. But of course the vast majority of falsely convicted people are never exonerated, so the real totals are certainly hundreds of thousands of innocent people spending millions of years in prison.

I agree with Mr. Bellen that the underlying problem is that it's so easy to convict the innocent at trial. I disagree with him that, "Most obviously, defendants who are acquitted at trial, suffer no trial penalty," given that at innocent elderly defendant might rationally choose to spend a year in prison and have a permanent felony record if the alternative is to permanently impoverish his whole family by spending his life savings on a competent defense. Paying for a defense is a trial penalty even if you win.

I propose that the government (whether state or federal) should pay as much for a defense as they pay for the corresponding prosecution, that it should be a felony for a cop to lie to a defendant, that bogus forensic science should be banned, that prosecutors should not reward people for testifying against others, that pretrial detention should be extremely rare, and that convicts should have their record automatically expunged after they "pay their debt to society" by completing their sentence.

Posted by: Keith Lynch | May 15, 2022 10:47:27 AM

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