Plea Bargaining Outside the Shadow of Trial

This article considers the various factors that might inflence plea bargaining beyond the shadow of trial theory, which proposes that plea bargains are crafted based on the likehood of success at trial. The piece includes consideration of strutural factors, which include attorney and agency costs, prosecutors’ pressures and incentives, defense attorneys’ pressures and incentives, guidelines and mandatory sentencing, bail and pretrial detention, and information deficits. The articles also considers psychological pitfalls in bargaining, which include overconfidence, optimism, biases, discounting, risk aversion, and other related topics. The piece concludes with consideration of possible solutions.

“The simplistic shadow-of-trial model has given scholars, courts, and legislators a false sense of confidence in the plea-bargaining system. We cannot demolish the huge edifice of plea bargaining, but we can at least expose and reform its flaws and inequities. Sentencing guidelines, mandatory minima, and new psychological research have created or exposed new difficulties and weaknesses—ones that this Article only begins to explore. Identifying the complicated reality is the first step toward improving it.” p.2547