The Plea Bargain in Theory: A Behavioral Model of the Negotiated Guilty Plea

Abstract

The negotiated guilty plea pervades our system of justice. Pleas of guilty entered by defendants prior to trial in exchange foi assurances of leniency in sentencing account, by our best estimates, for well over ninety percent of all criminal convictions in the United States.1 But while serious and difficult questions of ethical propriety surround the practice of plea bargaining and make its ubiquitous existence a source of continuing uneasiness in the law, perhaps no other aspect of the criminal process is so hidden and so little understood. Moreover, the need for systematic study of the nature and determinants of the plea bargaining process and the problems of constitutional values which it raises are not unrelated. The constitutionality of negotiated pleas turns largely on the question of whether the pressures of the bargaining situation are such that innocent defendants might be persuaded to accept a proffered plea bargain and subject themselves to punishment for crimes which they did not commit. Indeed, the United States Supreme Court, in approving the practice of plea bargaining, framed the issue in just this way: We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.2