Prosecutor and Lawyer in Plea Bargaining : Screening or Not Screening?

Abstract

In criminal law, when a conflict is solved by plea bargaining, the negotiation is mainly made between the prosecutor and the lawyer. The agency costs in the context of plea bargaining have been studied only by jurists (Alschuler [1976] and Schulhofer [1988 and 1992]). Distinguishing between different types of lawyer (selfish or altruistic), this paper compares two payment systems: flat fees and hourly-wage fees. We identify the system of fees in which the sentence is the lowest. We first show that under flat fees the prosecutor provides less effort when he faces an altruistic attorney. Second, we show that under some conditions a altruistic attorney may accept a higher sentence than a selfish attorney. Finally, we define conditions under which plea bargaining can be used as a screening tool to infer the lawyer’s type.

Keywords: plea bargaining, attorney’s selfishness, system of fees

JEL Classification: K14, K41, D74