Trials and Bargains

Abstract

Almost every criminal conviction in the United States is achieved by guilty plea, and the system of plea bargaining that creates this outcome is closely examined in this chapter and briefly compared with case dispositions in inquisitorial systems. Adversarial and inquisitorial trials as ways to determine criminal liability and liability prices are compared, and the origins of plea bargaining in rising caseloads and elaborate rights and procedures in adversarial trials are discussed. How plea bargaining works and whether it puts a price on the right to trial are examined, and the Supreme Court’s effort to regulate it for efficiency and fairness is reviewed. Bargaining in the United States and England are compared, and European approaches to rising caseloads are considered in light of the imperatives of inquisitorial procedure. Plea bargaining is a window on criminal liability everywhere, a last give-and-take over price in a system of involuntary entitlement exchange.