Bargained Justice: The History and Psychology of Plea-Bargaining and the Trial Penalty

This article examines the history of plea bargaining in the United States from the common law tradition (where the use of incentives to induce guilty confessions was prohibited) to the 1970 Brady decision (where the Supreme Court reversed course and approved of plea bargaining). The article then considers several findings from psychological research aimed at unpacking plea bargaining’s innocence problem. The article reviews recent Supreme Court precedent on plea bargaining to determine where the criminal justice system is headed next. The author articulates a hope that the path forward will include a system that “better reflects the importance of innocence and the value of individual liberty.” To realize these goals, the author concludes by encouraging future reform and regulation of plea practices to be guided by the findings from psychological research rather than assumptions. Such informed decision-making is the only way to meaningfully protect the innocent and the defendant’s constitutional rights, while also ensuring that pleas are voluntary and that the beneficial aspects of plea bargaining are maintained.

“…[W]e are beginning to better understand the forces that contribute to plea bargaining’s innocence issue, including sentencing differentials, pretrial detention, and risk aversion. This knowledge is the key to determining a path forward that preserves the meaningfulness of innocence, protects the constitutional right to trial, ensures pleas are voluntary, and allows for the efficiency and beneficial aspects of bargains.” p. 243