Plea Bargains, Convictions and Legitimacy

American Criminal Law Review, Vol. 48, p. 143, 2011

41 Pages Posted: 30 Aug 2010 Last revised: 6 Sep 2011

Date Written: October 10, 2010


Plea bargaining is a pervasive and troubling aspect of our criminal justice system. Recent criticism of the practice has concentrated on its failure to mirror the likely outcome of trial. Convictions generated through plea bargaining are less related to the evidence, and, hence, to actual guilt, than convictions generated by trial. Notwithstanding this significant difference between the processes and factors that generate convictions by trial and those that generate convictions by plea bargain, the legal system treats all convictions as formally identical. In doing so, the legal system violates basic principles of fairness and undermines its legitimacy. To the extent bargained-for convictions are aligned less reliably with actual guilt than convictions after trial, they should be classified as distinct from trial convictions. Additionally, defendants who wish to secure the benefit of a plea bargain routinely are compelled to admit factual guilt to do so. Yet, innocent persons will sometimes be induced to plead guilty through the practice of plea bargaining. Compelling the innocent to lie in order to secure the benefit of a plea bargain further undermines the perceived integrity of the legal system by denying the defendant of a meaningful opportunity to be heard. This Article proposes that plea bargaining be regulated through a few simple and clear rules that would limit the harm to the legal system caused by the practice.

Keywords: Plea Bargain, Guilty Plea, Integrity, Fairness, Stuntz, Alschuler, Schulhofer, Bibas, Charge Bargaining, Cognitive Bias

Suggested Citation

Gilchrist, Gregory M., Plea Bargains, Convictions and Legitimacy (October 10, 2010). American Criminal Law Review, Vol. 48, p. 143, 2011, Available at SSRN:

Gregory M. Gilchrist (Contact Author)

University of Toledo College of Law ( email )

2801 W Bancroft
MS 507
Toledo, OH 43606
United States
419-530-2712 (Phone)

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