The negotiated guilty plea: Vacancies as an alternative to the caseload pressure explanation

Abstract

Plea bargaining is often explained as a product of caseload pressure in the trial courts. Adherents of this position argue that plea bargaining expedites case flow and moves cases more speedily to sentencing. Yet there is substantial empirical evidence that the proportion of its population that a society incarcerates at any given moment has tended historically to remain relatively constant—suggesting that, even with plea bargaining, crowded courts do not necessarily produce more convicted and sentenced offenders. More importantly, there is also substantial empirical evidence that changes in caseload have little effect on the prevalence of plea bargaining. Thus, the claim that crowded courts induce plea bargaining as part of an effort by prosecutors, judges and attorneys to move cases more rapidly has been called increasingly into question. The purpose of this paper is to advance an alternate explanation that contemporary plea bargaining, far from responding to case backlog, constitutes a flexible systemic...