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This chapter introduces another player in the criminal process, the prosecutor, who is instrumental in the determination of actual criminal punishments through the practice of plea bargaining. Under plea bargaining, which is a literal negotiation between prosecutors and defendants over criminal sentences, prosecutors exercise considerable discretion regarding both what charge to bring and what sentence to offer. The vast majority of criminal convictions in the United States are achieved in this way. The chapter reviews economic theories of this practice and emphasizes the trade-off between the resulting savings in trial costs and the risk of wrongful conviction. It concludes by examining how plea bargaining affects the goals of deterrence and corrective justice.
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404 U.S. 257 (1971).
397 U.S. 742 (1970).
Technically, the distribution for guilty defendants is shifted rightward compared to that for innocent defendants in the sense of first-order stochastic dominance.
For example, Blackstone famously said that “it is better that ten guilty persons escape, than that one innocent suffer.” This view echoes that of the biblical story of Sodom and Gomorrah in which Abraham, after much back and forth, elicits a promise from the Lord that he will not destroy the city of Sodom for the sake of as few as ten righteous people (Genesis 18: 22–33).
As noted earlier, Posner ( 2003, p. 620) puts the range for “beyond reasonable doubt” at between 75% and 95% certainty. In the case of In Re Winship (397 U.S. 358 (1970), the Supreme Court held that the beyond-a-reasonable-doubt standard was required in criminal trials under the due process clause of the Constitution.
Hylton and Khanna ( 2009) offer a somewhat different theory for these safeguards, as will be noted below.
We will abstract here from the existence of a sentencing range and simply assume that, for the crime in question, a convicted defendant must receive a sentence of s.
This is the condition for the upper bound in ( 5.1) to be at least as large as the lower bound.
This includes crimes not listed in Table 5.1.
This is the outcome that would arise from ordinary Nash bargaining.
See, for example, Bebchuk ( 1984), who first explained trials in this way.
Formally, the conditional expected value of ε among defendants who go to trial (i.e., those for whom ε ≥ ε 0) is increasing in b.
Baker and Mezzetti ( 2001) show that in this case, the only type of equilibrium that exists involves some guilty defendants and all innocent ones opting for trial. Thus, some type 2 errors are possible.
We will argue in Chap. 8 that some people obey the law irrespective of the consequences simply because it is the “right” thing to do.
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- Plea Bargaining: Negotiated Justice
Thomas J. Miceli
- Chapter 5
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