Fixed Justice: Reforming Plea Bargaining With Plea-Based Ceilings

This article explores sentencing differentials, which are the differences between the sentence a defendant recieves after conviction at trial and the sentence they would have received had they pleaded guilty. The piece considers the idea that prosecutorial charging and sentencing policies prohibit the imposition of excessive sentencing differentials, but argues that prosecutorial discretion makes such policies difficult to enforce. The article then argues in favor of sentencing rules that require judges to utilize plea-based ceilings that limit the final sentence in a case. The piece concludes by considering the impact of such plea-based ceilings on the prevalence of false pleas of guilty by the innocent in response to coercive sentencing differentials.

“Plea-bargaining reform is possible. As I have argued here, plea-based ceilings provide one mechanism to monitor and control plea discounts. The benefits accompanying plea-based ceilings would be substantial: innocent defendants would be more likely to contest their cases; prosecutors would be discouraged from overcharging cases and induced to screen cases more thoroughly; and some of the most egregious bargaining tactics, including coercing defendants to plead guilty in order to avoid the death penalty, would be rendered obsolete.” p.1290