Plea Bargains Only for the Guilty

Abstract

A major concern with plea bargains is that innocent defendants might plead guilty. The law can address this concern. By restricting the permissible sentence reduction in a plea bargain, the law can preclude plea bargains in cases with a low probability of conviction (L cases). This will force the prosecutor to (1) select fewer L cases and proceed to trial with these cases or (2) select more cases with a higher probability of conviction (H cases) that can be concluded via a less costly plea bargain. As long as the probability of conviction is positively correlated with the probability of guilt, this selection‐of‐cases effect implies a reduced number of innocent defendants. We argue that the Federal Sentencing Guidelines achieve this socially desirable selection effect and that the recent Supreme Court holding in United States v. Booker dilutes this effect by reducing the guidelines' legal status from binding to advisory.