Plea Bargaining and Price Theory

Abstract

Like other markets, the plea bargaining market uses a pricing mechanism to coordinate market functions and to communicate critical information to participants, information that permits rational decisionmaking in the face of uncertainty. Because plea bargaining play such a prominent role in the administration of criminal justice, and because the pricing mechanisms inherent in plea bargaining can - like pricing mechanisms generally - both explain past conduct by market participants and predict future conduct, close scrutiny of the pricing mechanisms at work in plea bargaining is amply justified. This Article explores several features of the plea bargaining system in light of economic insights borrowed from basic price theory. That analysis suggests several structural flaws of the plea market that could, in theory, be amenable to reform efforts. Those flaws include an oversupply of penal leniency, overreliance on wholesale pricing mechanisms, and a devaluation of factual innocence from procedural time-constraints on the effective use of exculpatory evidence.

Keywords: plea bargaining, economics, law and economics, price theory, criminal procedure, law, economic analysis

JEL Classification: D49, K14, K39, K49