Partial Ban on Plea Bargains

A partial ban on plea bargaining—prohibiting bargains when concessions offered to defendants are large—is an optimal solution for the system’s deficiencies. Currently, prosecutors’ screening and charging policies cause an “innocence problem,” where even innocent defendants plead guilty because they prefer a specified lenient sentence to the risk of a much harsher sentence resulting from wrongful conviction at trial. Plea bargaining thus increases the number of prosecutions of weak cases. A larger disparity between expected sentence after trial conviction and bargained-for sentence indicates that the prosecutor has a weak case. While a total ban is unsustainable in a resource-shy criminal justice system where 95% of cases are resolved through bargaining, a partial ban on plea bargaining would encourage defendants with relatively high chances of acquittal to refuse bargains and instead stand trial. A partial ban would restrict sentence concessions to a certain percentage of the post-trial sentence, and courts would regulate this system by rejecting guilty pleas where the bargained-for sentence is lower than allowed. Implementation of such a system would vary from jurisdiction to jurisdiction because of obstacles posed by sentence bargaining, charge bargaining, judicial plea bargaining, and cooperation agreements.

“The best way to cope with the innocence problem is to allow plea bargaining only in strong cases and to ban plea bargaining in weak cases. Such a ‘partial ban’ on plea bargains would allow prosecutors to extract guilty pleas when defendants are almost certainly guilty, while forcing them to conduct jury trials when they bring more questionable charges. As a result, the portion of weak cases pursued by prosecutors would decrease substantially.” p. 2299