Plea Bargains Only for the Guilty

8 Pages Posted: 2 Jul 2004

See all articles by Oren Bar-Gill

Oren Bar-Gill

Harvard Law School

Oren Gazal-Ayal

University of Haifa - Faculty of Law


A major concern with plea bargains is that innocent defendants will be induced to plead guilty. This paper argues that the law can address this concern by providing prosecutors with incentives to select cases in which the probability of guilt is high. By restricting the permissible sentence reduction in a plea bargain the law can preclude plea bargains in cases where the probability of conviction is low (L cases). The prosecutor will therefore be forced to - (1) select fewer L cases and proceed to trial with these cases; or (2) select more cases with a higher probability of conviction (H cases) that can be concluded via a less-costly plea bargain. As long as the probability of conviction is positively correlated with the probability of guilt, this selection-of-cases effect implies a reduced number of innocent defendants that accept plea bargains. We argue that the Federal Sentencing Guidelines in fact achieve, albeit inadvertently, this socially desirable selection effect. We further argue that more limited discretion in sentencing facilitates the selection-of-cases effect. In this respect, the Federal Guidelines are superior to the state-level guidelines that leave considerable room for discretion in sentencing.

Keywords: Plea bargains, sentencing guidelines

JEL Classification: K14, K42

Suggested Citation

Bar-Gill, Oren and Gazal-Ayal, Oren, Plea Bargains Only for the Guilty. Journal of Law & Economics, Vol. 49, pp. 353-364, 2006; Harvard Law and Economics Discussion Paper No. 481. Available at SSRN: or

Oren Bar-Gill (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Oren Gazal-Ayal

University of Haifa - Faculty of Law ( email )

Mount Carmel
Haifa, 31905


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