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Guilt Shall Not Escape or Innocence Suffer? The Limits of Plea Bargaining When Defendant Guilt is Uncertain

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  • David Bjerk

Abstract

This article examines optimal prosecutor behavior with respect to plea bargaining when defendant guilt is uncertain. I show that when jury beliefs and behavior are determined endogenously in equilibrium along with defendant and prosecutor behavior, plea bargaining can play only a limited role in managing society's conflicting desires to maximize punishment of the guilty and minimize punishment of the falsely accused. In particular, while it can be optimal for prosecutors to use plea bargaining to induce a large fraction of guilty defendants to voluntarily sort themselves from the innocent, such sorting must come at the cost of imposing relatively short sentences on such guilty defendants who accept plea bargains. Copyright 2007, Oxford University Press.

Suggested Citation

  • David Bjerk, 2007. "Guilt Shall Not Escape or Innocence Suffer? The Limits of Plea Bargaining When Defendant Guilt is Uncertain," American Law and Economics Review, American Law and Economics Association, vol. 9(2), pages 305-329.
    • Handle: RePEc:oup:amlawe:v:9:y:2007:i:2:p:305-329
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    File URL: http://hdl.handle.net/10.1093/aler/ahm010
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    Citations

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    Cited by:

    1. Siddhartha Bandyopadhyay & Bryan C McCannon, 2010. "Re-election Concerns and the Failure of Plea Bargaining," Discussion Papers 10-28, Department of Economics, University of Birmingham.
    2. SangMok Lee, 2014. "Plea bargaining: on the selection of jury trials," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 57(1), pages 59-88, September.
    3. Andrew F. Daughety & Jennifer F. Reinganum, 2016. "Selecting among Acquitted Defendants: Procedural Choice versus Selective Compensation," Journal of Institutional and Theoretical Economics (JITE), Mohr Siebeck, Tübingen, vol. 172(1), pages 113-133, March.
    4. Bjerk, David J. & Helland, Eric, 2017. "Using a Ratio Test to Estimate Racial Differences in Wrongful Conviction Rates," IZA Discussion Papers 10631, Institute of Labor Economics (IZA).
    5. ANCELOT Lydie, 2010. "Equité du plaider coupable : une analyse économétrique dans trois tribunaux de grande instance français," Working Papers of BETA 2010-09, Bureau d'Economie Théorique et Appliquée, UDS, Strasbourg.
    6. Yacov Tsur, 2017. "Bounding reasonable doubt: implications for plea bargaining," European Journal of Law and Economics, Springer, vol. 44(2), pages 197-216, October.
    7. Guha Brishti, 2020. "Pretrial Beliefs and Verdict Accuracy: Costly Juror Effort and Free Riding," The B.E. Journal of Theoretical Economics, De Gruyter, vol. 20(2), pages 1-9, June.
    8. Bryan C. McCannon, 2017. "Who pays taxes? Liturgies and the Antidosis procedure in Ancient Athens," Constitutional Political Economy, Springer, vol. 28(4), pages 407-421, December.
    9. Christmann, Robin, 2018. "Prosecution and Conviction under Hindsight Bias in Adversary Legal Systems," MPRA Paper 84870, University Library of Munich, Germany.
    10. Konstantinos Ioannidis & Theo Offerman & Randolph Sloof, 2022. "Lie Detection: A Strategic Analysis of the Verifiability Approach," American Law and Economics Review, American Law and Economics Association, vol. 24(2), pages 659-705.
    11. SIDDHARTHA BANDYOPADHYAY & BRYAN C. McCANNON, 2015. "Prosecutorial Retention: Signaling by Trial," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 17(2), pages 219-256, April.
    12. Jeong-Yoo Kim, 2010. "Credible plea bargaining," European Journal of Law and Economics, Springer, vol. 29(3), pages 279-293, June.
    13. David Bjerk, 2021. "Socially Optimal Plea Bargaining With Costly Trials And Bayesian Juries," Economic Inquiry, Western Economic Association International, vol. 59(1), pages 263-279, January.
    14. Bryan C. McCannon, 2024. "Alaska's ban on sentence bargaining," Contemporary Economic Policy, Western Economic Association International, vol. 42(1), pages 110-119, January.
    15. Andrew F. Daughety & Reinganum F. Reinganum, 2014. "Settlement and Trial: Selected Analyses of the Bargaining Environment," Vanderbilt University Department of Economics Working Papers 14-00005, Vanderbilt University Department of Economics.
    16. Brishti Guha, 2024. "Plea bargaining when juror effort is costly," Economic Theory, Springer;Society for the Advancement of Economic Theory (SAET), vol. 78(3), pages 945-977, November.
    17. McCannon, Bryan C., 2010. "Homicide trials in Classical Athens," International Review of Law and Economics, Elsevier, vol. 30(1), pages 46-51, March.
    18. DeAngelo, Gregory & McCannon, Bryan C. & Stockham, Morgan, 2023. "District attorney compensation and performance," International Review of Law and Economics, Elsevier, vol. 73(C).
    19. Alexander Lundberg, 2024. "Do prosecutors induce the innocent to plead guilty?," Economic Inquiry, Western Economic Association International, vol. 62(2), pages 650-674, April.
    20. Guha, Brishti, 2023. "Accomplice plea bargains in the presence of costly juror effort," Games and Economic Behavior, Elsevier, vol. 142(C), pages 209-225.
    21. Bryan C. McCannon & Joylynn Pruitt, 2018. "Taking on the boss: Informative contests in prosecutor elections," Journal of Public Economic Theory, Association for Public Economic Theory, vol. 20(5), pages 657-671, October.
    22. Andrew F. Daughety & Jennifer F. Reinganum, 2017. "Information suppression by teams and violations of the Brady rule," Vanderbilt University Department of Economics Working Papers 17-00001, Vanderbilt University Department of Economics.

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