Plea Bargaining: From Patent Unfairness to Transparent Justice

35 Pages Posted: 6 Mar 2018

See all articles by Mirko Bagaric

Mirko Bagaric

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School

Julie N. Clarke

Melbourne Law School

William Rininger

University of Akron, School of Law, Students

Date Written: February 24, 2018


The United States is in the midst of an unprecedented mass incarceration crisis. It imprisons more of its citizens than any other country—and by a considerable margin. It is now widely acknowledged that there is no community dividend stemming from an overly punitive sentencing system. Over-incarceration does not make the community safer and diverts billions of dollars annually from productive social services, such as health and education. Lawmakers have failed to find overarching solutions to this crisis. This Article proposes to change that paradigm by offering concrete reforms to a key failing of the sentencing system. Emerging evidence suggests that one of the main reasons for the mass incarceration crisis relates to the dysfunctional plea bargaining process, in which the prosecution has the stronger negotiating power and often uses it to press for harsh penalties. The reality is that most defendants in the United States do not receive a trial, let alone a fair one. Their fate is determined by a negotiation with a prosecutor. More than ninety percent of all criminal matters in the United States are finalized in this manner. There is a wide-ranging consensus that this process is flawed. It results in a large portion of defendants receiving harsher penalties than is commensurate with the seriousness of their offense. Sometimes it also leads to defendants who are innocent pleading guilty, in order to avoid the uncertainty of a trial. The process is especially unfair on minority groups, with evidence establishing that African Americans in particular, receive harsher penalties than similarly situated white defendants. This Article proposes reforms to the plea bargaining process that will demonstrably and profoundly reshape the framework for plea negotiations. The central plank of the proposed reform is to shift more discretion and power from prosecutors, who invariably agitate for tougher sentences, into the hands of (impartial) sentencing judges. This can be achieved by conferring a discount to offenders who plead guilty. The size of the discount should be up to thirty percent. A similar system already operates effectively in Australia. In addition to this, defendants who plead guilty in circumstances when there is a weak prosecution case (and who are tenably innocent) should receive a discount of up to seventy-five percent. This proposal would considerably reduce incarceration numbers in a way that does not compromise community safety and preserves the cost-saving benefits of the current plea bargaining process. The reform will also reduce the discriminatory operation of the sentencing system against offenders who come from socially and economically deprived backgrounds.

Keywords: Sentencing, plea bargain, making the negotiation fairer, fixed guilty plea discount to be imposed by courts

JEL Classification: K14

Suggested Citation

Bagaric, Mirko and Clarke, Julie N and Rininger, William, Plea Bargaining: From Patent Unfairness to Transparent Justice (February 24, 2018). Missouri Law Review, Forthcoming, Available at SSRN:

Mirko Bagaric (Contact Author)

Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School ( email )

Burwood, Victoria 3000

Julie N Clarke

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010


William Rininger

University of Akron, School of Law, Students

Akron, OH
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics