Plea Bargaining as Contract

The freedom to exchange entitlements underlies both contract negotiations and plea bargaining. Thus, the authors argue, plea bargains can be best understood as contracts. Plea bargaining’s opponents support the process’s abolition because bargains may amount to duress or fraud, are unconscionable, resemble slavery contracts, or are otherwise distributionally unfair to criminal defendants. However, plea bargaining’s proponents find such arguments unconvincing, for the prohibition of the process altogether would eliminate defendants’ contractual autonomy. Instead, the proponents use contracts as a framework for understanding and resolving the process’s structural problems. Defendants and prosecutors can reach the best possible deal shortly after a charging decision because both parties are in their best position to maximize potential gains and reduce potential risks. However, because of numerous information barriers, parties’ inabilities to judge the other’s truthfulness, prevailing societal norms, and personal moral or ethical stances, the parties will likely not reach the most efficient contract/bargain. The obstacles make it difficult for innocent defendants to signal their innocence to prosecutors in ways that guilty defendants cannot copy. Thus, prosecutors likely ignore signals of innocence and offer the same deals regardless of a defendant’s guilt. Because they are more risk-averse, innocent defendants are more likely to accept plea deals, especially when they do not discount for the possibility of acquittal. The best reforms should use contract theory to understand the parties’ dynamic and attack this “innocence problem” directly.

“Contract makes the positive reactions of plea bargaining participants seem sensible, for plea bargains are indeed paradigmatically value-enhancing bargains. Contract makes the disquiet of the critics seem sensible too, since the bargaining dynamic shortchanges the innocent. And contract offers a range of second-best solutions, doctrinal reforms that can help prosecutors and defendants alike.” p. 1968