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Partial Ban on Plea Bargains


Oren Gazal-Ayal


University of Haifa - Faculty of Law


Cardozo Law Review, Vol. 27, p. 2295, 2006
Michigan Law and Economics Research Paper No. 05-008

Abstract:     
The influence of the plea bargaining system on innocent defendants is fiercely debated. Many scholars call for a ban on plea bargaining, arguing that the practice coerces innocent defendants to plead guilty. Proponents of plea bargaining respond that even an innocent defendant is better off when he choose to plea bargain in order to assure a lenient result, if he concludes that the risk of wrongful trial conviction is too high. They claim that since plea bargaining is only an option, it cannot harm the defendant whether he is guilty or innocent. This paper argues that the both supporters and opponents of plea bargaining overlook its most important effect on innocent defendants: its effect on prosecutorial screening.

When plea bargaining is available, prosecutors can extract a guilty plea in nearly every case, including very weak cases, simply by adjusting the plea concession to the defendant's chances of acquittal at trial. When almost every case results in a plea of guilty, regardless of the strength of the evidence, prosecutors have much less interest in screening away weak cases. Since some cases are weak because the defendant is innocent, however, more innocent defendants are charged and as a result more are convicted.

When the screening process is taken into account, there is no reason to believe that innocent defendants gain from plea bargaining. Yet, a total ban on plea bargaining is not the optimal response to the system's deficiencies - and not only because such a ban would be unsustainable in an overloaded criminal justice system. A better response would be a partial ban on plea bargaining, meaning a system that only prohibits plea bargains when the concession offered to the defendant in return for his guilty plea is large. With plea concessions restricted in such a way, defendants with relatively high chances of acquittal at trial would refuse to plea bargain. That way, prosecuting a weak case would usually result in a trial while a strong cases would be disposed through plea bargaining. Since prosecution resources do not allow for a high trial rate, prosecutors will be forced to refrain from bringing weak cases in order to direct scarce resources to stronger cases that can be settled. A partial ban therefore encourages prosecutors to refrain from bringing weak cases and reduces the risk of an innocent person being charged.

Number of Pages in PDF File: 56

Keywords: Plea Bargaining, Criminal Procedure, Law and Economics

JEL Classification: K14, K42

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Date posted: September 5, 2005  

Suggested Citation

Gazal-Ayal, Oren, Partial Ban on Plea Bargains. Cardozo Law Review, Vol. 27, p. 2295, 2006; Michigan Law and Economics Research Paper No. 05-008. Available at SSRN: http://ssrn.com/abstract=794549

Contact Information

Oren Gazal-Ayal (Contact Author)
University of Haifa - Faculty of Law ( email )
Mount Carmel
Haifa, 31905
Israel
HOME PAGE: http://weblaw.haifa.ac.il/en/Faculty/GazalAyal/Pages/default.aspx
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