The Prisoners’ (Plea Bargain) Dilemma

40 Pages Posted: 28 Aug 2009 Last revised: 18 Sep 2009

See all articles by Oren Bar-Gill

Oren Bar-Gill

Harvard Law School

Omri Ben-Shahar

University of Chicago Law School

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Date Written: August 28, 2009


How can a prosecutor, who has only limited resources, credibly threaten so many defendants with costly and risky trials and extract plea bargains involving harsh sentences? Had defendants refused to settle, many of them would not have been charged or would have escaped with lenient sanctions. But such collective stonewalling requires coordination among defendants, which is difficult if not impossible to attain. Moreover, the prosecutor, by strategically timing and targeting her plea offers, can create conflicts of interest among defendants, frustrating any attempt at coordination. The substantial bargaining power of the resource-constrained prosecutor is therefore the product of the collective action problem that plagues defendants. This conclusion suggests that, despite the common view to the contrary, the institution of plea bargains may not improve the well-being of defendants. Absent the plea bargain option, many defendants would not have been charged in the first place. Thus, we can no longer count on the fact that plea bargains are entered voluntarily to argue that they are desirable for all parties involved.

Keywords: prisoners, plea, bargain, dilemma, prosecutor, defendant, sentences, trial, Bar-Gill, Ben-Shahar

Suggested Citation

Bar-Gill, Oren and Ben-Shahar, Omri, The Prisoners’ (Plea Bargain) Dilemma (August 28, 2009). The Journal of Legal Analysis, Vol. 1, No. 2, Summer 2009, NYU School of Law, Public Law Research Paper No. 09-51, NYU Law and Economics Research Paper No. 09-37, Available at SSRN:

Oren Bar-Gill (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Omri Ben-Shahar

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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