The History and Psychology of Plea Bargaining and the Trial Penalty

In 2019, the Federal Sentencing Reporter published a special two volume collection on plea bargaining and the trial penalty. You can review the table of contents from the volumes on the journal's website. It is a wonderful collection of pieces exploring this issue from various perspectives. 

As part of the collection, I was invited to write about the history of plea bargaining and the issue of innocence in a piece entitled, Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty, 31 Federal Sentencing Reporter 239-247 (2019). A draft of this article is now available on SSRN.

The Article's Abstract:

This article beings with an examination of the historical rise of plea bargaining and discusses how bargained justice emerged from a deep common law tradition that had rejected the use of incentives to induce confessions of guilt. This introduction to the subject concludes by considering the language used by the Supreme Court in 1970 to diverge from these past precedents and approve of bargains, including a Justice’s words of caution regarding innocence. The article then delves into plea bargaining’s innocence issue more squarely and considers how the incentives offered to defendants impact the accuracy and reliability of guilty pleas. This discussion includes examination of the complex psychological forces at play within defendant decision-making, the significant advances that have been achieved in the law and psychology discipline during recent years, and what this means about the Supreme Court’s words regarding innocence in 1970. Finally, the article concludes by considering the Supreme Court’s recent plea bargaining jurisprudence and contemplates where our system of justice might be heading next.

Download the entire article here.