Center for Contract and Economic Organization
Program in the Law and Economics of Capital Markets
Most criminal prosecutions are settled without a trial.' The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not.2 On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority of those who go to trial are acquitted.3
There is something puzzling about the polarity of contemporary reactions to this practice. Most legal scholars oppose plea bargaining, finding it both inefficient and unjust.4 Nevertheless, most participants in the plea bargaining process, including (perhaps especially) the courts, seem remarkably untroubled by it. Not only is the practice widespread, but participants generally approve of it.5 Why is plea bargaining at once so widely condemned and so widely tolerated?
One place to look for an answer is in the law and literature of plea bargaining as contract. Plea bargains are, as the name suggests, bargains; it seems natural to argue that they should be regulated and evaluated accordingly. But while that argument is common, there is little agreement on where it leads. Two of the harshest and most influential critics of plea bargaining, Albert Alschuler and Stephen Schulhofer, maintain that contract theory supports prohibiting any bargained-for allocation of criminal punishment.6 The courts, on the other hand, have proceeded to construct a body of contract-based law to regulate the plea bargaining process, taking for granted the efficiency and decency of the process being regulated. The many academic arguments for abolishing (or at least severely restricting) plea bargaining have thus been largely ignored. It is tempting to explain this reaction as a product of the chasm between an overly fastidious academic world and the unpleasant realities of modem criminal processes. But the intuition that plea bargaining is fundamentally flawed is too strong and too widespread to be so casually dismissed.
Robert E. Scott & William J. Stuntz,
Plea- Bargaining as a Social Contract,
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/317