Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve

47 Pages Posted: 25 Aug 2010 Last revised: 1 Sep 2012

See all articles by Lucian E. Dervan

Lucian E. Dervan

Belmont University - College of Law

Date Written: August 24, 2010


If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are so coercive as to overbear defendants’ abilities to act freely. Further, as a means to discern whether the safety-valve fails in the future and prosecutors are offering unconstitutional incentives, the Brady Court created a litmus test regarding innocent defendants. The Court stated that should the plea bargaining system begin to operate in a manner resulting in a significant number of innocent defendants pleading guilty the Court would be forced to reexamine the constitutionality of bargained justice. That plea bargaining today has a significant innocence problem indicates that the Brady safety-valve has failed and, as a result, the constitutionality of modern day plea bargaining is in great doubt.

Keywords: Plea Bargaining, Confession, Brady v. United States, Supreme Court, Criminal Law, Criminal Procedure

JEL Classification: K10, K14, K40, K42

Suggested Citation

Dervan, Lucian E., Bargained Justice: Plea Bargaining's Innocence Problem and the Brady Safety-Valve (August 24, 2010). 2012 Utah Law Review 51 (2012), Available at SSRN:

Lucian E. Dervan (Contact Author)

Belmont University - College of Law ( email )

1900 Belmont Boulevard
Nashville, TN 37212
United States


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