In Defense of Criminal Defense Expenditures and Plea Bargaining

Abstract:     
Authors' description of their paper:Criminal defense expenditures have come under severe criticisms because differential expenditures are equated with unequal justice. Trials such as O.J. Simpson's draw particularly strong reactions: "Wealthy defendants can afford attorneys who are skilled at manipulating the system.... The result...is that the rich get a different, more friendly brand of justice." We argue that allowing disparities in criminal defense expenditures can ensure that innocent defendants face lower penalties from going to trial. These expenditures also mitigate the effects of systematic differences in risk aversion, thus increasing the probability that the efficient screening properties of a plea bargaining system are preserved. The innocent defendant not only has a more favorable assessment ofthe likelihood of his success at trial than the guilty one, based upon facts not observable to the prosecution, but, as we show, he also faces, ceteris paribus, resource costs from trial that are less than or equal to those borne by guilty defendants. Both the lower expected chance of conviction and the lower costs of going to trial reduce the incentive for the innocent defendant to falsely plead guilty.

JEL Classification: K14

Accepted Paper Series