The Prisoners' (Plea Bargain) Dilemma: Most Defendants Could Avoid Both Plea Bargaining and Trial If They Could Coordinate

By Bar-Gill, Oren; Ben-Shahar, Omri | Regulation, Spring 2010 | Go to article overview

The Prisoners' (Plea Bargain) Dilemma: Most Defendants Could Avoid Both Plea Bargaining and Trial If They Could Coordinate


Bar-Gill, Oren, Ben-Shahar, Omri, Regulation


The policy debate over plea bargaining has focused in large part on one question: Do plea bargains help defendants or hurt them? Proponents of plea bargaining argue that it is good for defendants. The defendant, so the argument goes, can always choose not to plea and instead go to trial. If a defendant chooses to accept a plea bargain, then the deal must be better for the defendant than going to trial. Plea bargains add an option, and more options are better than fewer. Against this view, a prominent opposition highlights the coercive features of the plea bargaining process. Defendants' choice is not free, but rather a response to powerful constraints and threats from prosecutors. In the same way that a contract reached under duress is not beneficial to the coerced party, plea bargains cannot be generally viewed as an improvement.

Both views are based on an important assumption we challenge, that in the absence of a plea bargain the defendant would have to go to trial. This assumption is crucial for the more-options argument: the availability of a plea bargain is viewed as providing one additional choice (often a better choice) beyond that which already exists, going to trial. The assumption is also crucial for the coercion argument: it is the prosecutor's threat to take the defendant to trim that gives rise to duress.

The assumption that in the absence of plea the defendant would face trial is only true if prosecutors have credible threats to take to trial those defendants that choose not to plea. But can prosecutors credibly make such a threat?

To be sure, prosecutors have enough control over the criminal process to be able to make such trial threats. This aspect might lead us to conclude that the trial threat is credible; indeed, thinking of each individual case in isolation, this conclusion is sensible, almost obvious. In any individual case against a single specific defendant, the prosecutor may have enough discretion and resources to make a trial threat in a credible manner, and to carry it out if the defendant does not budge.

However, the prosecutor has to bargain against more than one defendant at any given time more than she can possibly afford to take to trial. Therefore, thinking about each individual case in isolation misses some important element of the strategic interactions between prosecutors and defendants. Specifically, it overlooks the fact that the prosecutor cannot possibly take all defendants to trial.

The prosecutorial resource constraint is commonly recognized. Harvard law professor William Stuntz has noted that "due to docket pressure, prosecutors lack the time to pursue even some winnable cases," and that "prosecutors in most jurisdictions have more cases than they have time to handle them." This resource constraint is commonly invoked as the most persuasive justification for the plea bargain institution. But recognizing the resource constraint does more than justify the plea bargain system as a cost-saving device. It also raises a fundamental paradox: If the prosecutor has enough resources to take only very few defendants to trial, how can her threats to take all defendants to trial induce them to plea? Why does it matter that prosecutors can select the sentence if, because of "extreme docket pressure," they cannot make good on their threat to pursue the case all the way to the verdict and sentence? The resource constraint can potentially undermine the credibility of the prosecutor's threat. Stated metaphorically, if you are facing off against a multitude of opponents and have only enough ammunition to strike one or very few of them, how can you succeed in having them all surrender? Why, in other words, do prosecutors succeed in extracting favorable plea bargains from a large majority of defendants when their threats against defendants are undermined by severe budget constraints?

[ILLUSTRATION OMITTED]

This paradox is fundamental because it has implications for both sides of the plea bargain debate.

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