Courts in common law countries reject plea-agreements only when the agreed upon sentence is seen as exceedingly lenient. This judicial intervention is designed to ensure that plea-bargaining does not undermine deterrence. Many legal scholars argue against this policy, claiming that courts should prohibit plea-bargaining all together. They argue that the plea-bargaining system increases the risk of wrongful convictions. Economists often criticize this judicial intervention as well, but for a different reason. Rather than advocating the abolition of plea-bargaining, many economists argue that the courts should accept all plea-agreements without review. They claim that plea-bargaining can help ensure an efficient use of prosecutorial resources and thus help maximize deterrence. In the paper, I will argue that a plea-bargaining system that includes judicial review is superior to both of these suggested alternatives. Moreover, I will show that the prohibition of exceedingly lenient sentences is justified, not because it ensures appropriate deterrence, but because it can reduce the risk of wrongful convictions. When the evidence against a certain defendant is weak, the prosecution is usually willing to offer him a lower sentence in plea-bargaining in order to ensure his conviction. Such a defendant would not accept an offer to plead guilty unless he receives a substantial concession in the agreement. Thus lenient plea-bargaining can indicate that the evidence against the defendant is weak. Given that weak evidence can indicate a higher probability of factual innocence, it is likely that the percentage of innocent defendants is relatively higher among defendants that are offered an exceptionally lenient plea-bargains. When courts prevent these types of agreements, they force the prosecutor either to go to trial or to dismiss the case. At the same time, the court would accept plea-bargains in strong cases because in these cases, prosecutors can achieve defendants' agreements to settle even without offering them exceedingly lenient concessions. By hindering the prosecutor's ability to agree to exceedingly lenient sentences, courts increase the cost of handling weak cases, without obstructing the prosecutor's ability to settle stronger cases. This helps to reduce the risk of wrongful convictions by encouraging the prosecutor to pursue the cases of defendants that are more likely to be guilty and to dismiss the cases against defendants that more likely to be innocent.
Criminal Law | Criminal Procedure | Law and Economics
Date of this Version
Oren Gazal, "Screening, Plea Bargains and the Innocent Problem" (November 2004). University of Michigan Program in Law and Economics Archive: 2003-2009. Working Paper 31.