PLEA BARGAINING AS CONTRACT

Legal academics seem to have reached a consensus that plea bargaining is unfair and wrong. On the other hand, judges prosecutors, and defense attorneys (together with most defendants) seem to think the current system of plea negotiation functions fairly well. In this Article, the authors argue that both consensus positions are mistaken, for reasons that become apparent when one views plea bargaining through the lens of contract law and theory. Measured against the standards we apply to bargains in other settings, plea bargaining appears both fair and efficient as a general matter. At the same time, bargain theory suggests a fundamental flaw in the process, albeit one that affects only a relatively small minority of cases: the bargaining dynamic tends to thwart innocent defendants' efforts to separate themselves from guilty defendants. Abolishing plea bargaining would only make this problem worse, though there are more modest doctrinal reforms that could marginally improve innocent defendants' bargaining position. Once again, a contractual analysis proves helpful in identifying those reforms.