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This chapter explores in more detail four very different domains where incentives have been controversial: plea bargaining, recruiting medical research subjects, the loan policies of the International Monetary Fund, and motivating children to learn. Each of these cases illuminates a web of concerns surrounding the ethics of incentives and illustrates how legitimate and illegitimate incentives can be differentiated. The chapter argues for the usefulness of taking up the question of the ethical use of incentives in very different contexts. Sensitivity to context increases the complexity of the issues but never in exactly the same ways in every case. Despite this diversity, the controversies in each case revolve around the same central questions identified in the last chapter on evaluating incentives.

Plea bargaining is often confronted with several criticisms and these are presented at the beginning of this chapter. However, the chapter emphasizes that plea bargaining should not be considered as the primary cause of the failure of the criminal justice system to punish wrongdoers. Plea bargaining was the first discretionary decision to be identified by observers of the criminal process. Since its process includes a number of decisions, attempts to control plea bargaining is complicated. This chapter illustrates how courtroom work groups have important consequences for the control of plea bargaining and how group norms serve as a powerful constraint on prosecutorial discretion. Several attempts at abolishing plea bargains are also illustrated. However, the chapter argues that the various attempts to ban plea bargaining do not inspire optimism about abolition as a solution to the problem of prosecutorial discretion, rather, regulation of discretion control is more useful.

This chapter examines the early patterns of plea bargaining and concessions in Massachusetts. Based on the definition of plea bargaining as the entry of a guilty plea in anticipation of concessions, it explores the movement in guilty plea rates and shifts in disposition and sentencing, with respect to plea over time to determine change in the contours of plea bargaining. The chapter analyzes guilty plea rates and concessions using the cases randomly sampled from the Boston docket, for each decade from 1830 through 1920. It suggests that that entry of guilty pleas and leniency attending such a plea are the two building blocks that analytically comprise plea bargaining, and concludes that whilst plea bargaining existed by the 1830s, by 1860 it had been solidly established and institutionalized.

How can the jury—or something like it—increase its standing within criminal justice? The American Bar Association and other organizations concerned about the jury’s decline have urged a “more active jury” with measures like jury note taking and questions for witnesses. Academic supporters endorse these reforms but overlook the possibility of broader institutional change. By contrast, grassroots activists advocating the “fully informed juror” seek to redress power imbalances within the courtroom through nullification. This chapter argues that both movements needlessly accept a dichotomy between lay and professional judgment; each favoring a different side, neither conceive co-responsibility for criminal justice. It suggests two institutional changes instead. First, carefully crafted jury sentencing authority—accepted practice for capital cases, for some components of civil cases, and in a handful of states for noncapital cases—can transparently rather than covertly empower laypeople in the court and may also moderate citizen influence on sentencing. Second, limits on plea bargaining should be considered. While plea bargaining is often justified by reasons of efficiency and cost, the penal state has its own inefficiencies and high economic and social costs that can be fully comprehended by the public only via greater participation in the criminal justice process.

The chapter focuses on the merits of plea bargaining as a mechanism for discerning the truth of the criminal charges against individuals. Unconstrained forms of plea bargaining are not reliably truth-discerning. Full-blown adversary trials may not perform much better, though there is some reason to believe that British trials are superior to American ones in this respect. Settlement hearings, at which those charged with crimes are encouraged and indeed expected to admit their guilt, offer us greater assurance that when we punish we do so justifiably. Even improved adversary trials are unlikely to provide comparable assurance. Importantly, European countries whose inquisitorial legal systems are more truth-focused have adopted limited forms of plea bargaining. This suggests that, if properly structured and constrained, the informal resolution of criminal charges can be made to serve the goal of getting at the truth.

The ubiquity of plea bargaining in the United States and in England and Wales is noted, as is its emergence in other countries. The issues that a normative analysis of plea bargaining must confront are identified. These include the availability and magnitude of sentence or charge reductions, whether they should be fixed or subject to negotiation, whether they should shorten or preclude trials, and which parties should be involved in plea negotiations. The crucial distinction between trial penalties and waiver rewards is signaled, as is the distinction between the analysis of plea bargaining in ideal versus non-ideal contexts, where the latter encompasses the possibility of overcriminalization in all its guises. An overview of the book’s conclusions is provided.

This chapter traces the beginnings of plea bargaining in antebellum Boston, Massachusetts, the first sustained instance of the practice known, thus far, to exist. It explores the social origins of plea bargaining and the adaptations of it that took place as the practice rose to prominence, and examines how judges drew on a unique element of common law legal culture called episode leniency as they responded to a perceived crisis of social order. The chapter highlights how plea bargaining profoundly changed the nature of criminal justice, and discusses issues concerning the beginnings of plea bargaining in partisan contest and political stabilization.

This chapter focuses on the American law of plea bargaining. While negotiated guilty pleas are now common in nearly all justice systems, in U.S. criminal justice systems its practice is singularly “deregulated” and effectively privatized. The chapter examines how U.S. law on guilty pleas, which took shape largely as neoliberal economic ideas gained renewed prominence in the 1970s, borrows directly from the private law of contract and related ideas about efficiency of private markets. Free market ideas provide the normative justifications for the nearly total absence of meaningful constitutional or statutory standards for negotiating tactics, plea agreement terms, as well as for the judiciary’s marginal role in plea bargaining practice and in assuring the integrity and proportionality of their own judgments based on guilty pleas.

This chapter introduces the reader to plea bargaining. The chapter begins with a discussion of the mechanics of plea bargaining and the dominant forms of plea bargaining in the United States’ criminal justice system. In doing so, the chapter examines the manner in which defendants engage in bargaining and the shadow-of-trial model of bargaining. The chapter then discusses the historical rise of plea bargaining in the United States and considers whether today’s plea bargains reflect the U.S. Supreme Court’s vision of the system as laid down in the case of Brady v. United States in 1970 (Brady v. United States, 1970). Finally, the chapter concludes by briefly examining several recent Supreme Court plea bargaining cases and considers whether a renewed focus on plea bargaining jurisprudence is materializing.

This chapter provides an introductory overview of contemporary theory and research on race and plea bargaining. It reviews theoretical explanations for racial disparities in plea bargaining, summarizes current research on race and guilty pleas, and identifies key limitations in existing scholarship on the topic. The chapter considers how guilty plea processes may contribute to broader patterns of cumulative racial disadvantage. The chapter concludes with an overview of promising new directions for future research in this highly consequential and understudied area of the American court system.

The year 2016 produced a record number of exoneration cases involving guilty pleas (National Registry of Exonerations, 2017). Nonetheless, guilty pleas account for a minority of overall exonerations in the National Registry. This chapter provides a broad overview of false guilty pleas, including what they are and why they can be so difficult to document. Also reviewed is current research examining factors that have increased the likelihood of false guilty pleas both in the real world and in the lab. The chapter continues by describing the shadow-of-the-trial model, followed by a discussion of its potential limitations, especially its omission of guilt status as a predictor of plea outcomes. Finally, the chapter concludes with proposed reforms for reducing false guilty pleas as well as with areas of need for future research.

This chapter considers prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about plea bargaining. Plea agreements are based on a strong presumption of correctness. The point of plea bargaining is to achieve a quick, tidy, and final resolution. An enduring question, however, is whether plea bargaining harms the innocent. This chapter first looks at the tendency of some innocent defendants to rationally forgo their right to trial and plead guilty before discussing the reasons why prosecutors offer generous pleas in weak cases, including tunnel vision and loss aversion. It then examines the failure of legal doctrines and ethical rules to protect the innocent during plea bargaining and concludes by suggesting reforms to address the most glaring flaw in plea bargaining practices: that some innocent defendants plead guilty to avoid the uncertainty of going to trial and receiving a higher sentence upon conviction.

This chapter considers prosecutorial choices before trial that may contribute to wrongful convictions, with particular emphasis on decisions about plea bargaining. Plea agreements are based on a strong presumption of correctness. The point of plea bargaining is to achieve a quick, tidy, and final resolution. An enduring question, however, is whether plea bargaining harms the innocent. This chapter first looks at the tendency of some innocent defendants to rationally forgo their right to trial and plead guilty before discussing the reasons why prosecutors offer generous pleas in weak cases, including tunnel vision and loss aversion. It then examines the failure of legal doctrines and ethical rules to protect the innocent during plea bargaining and concludes by suggesting reforms to address the most glaring flaw in plea bargaining practices: that some innocent defendants plead guilty to avoid the uncertainty of going to trial and receiving a higher sentence upon conviction.

This chapter describes the legal process, which is dominated by plea bargaining. In particular, it investigates the factors that affect plea bargaining, compares how outcomes are achieved, and discusses how legal work and the legal process are perceived by those directly involved in military court system. Time and money bear heavily on the prevalence of plea bargaining. Some lawyers certainly lack the professional skills needed to handle the pressures of a trial, so they “need” to plea-bargain. But in this court system, plea bargaining is the norm, not the exception. Legally and politically, the prevalence of plea bargaining in the military court system is a rational response to the carceral nature of military occupation and the constricted options available to Palestinian defendants and their lawyers. But plea bargaining also reveals that people can and do maneuver for advantages, even under such conditions.

This chapter investigates the influence of improvisation in law on the emergence of plea bargaining in the U.S.A. It identifies what circumstances combined to cause episodic leniency to be recrafted into the distinctive legal form known as plea bargaining, and suggests that the assumed origin of plea bargaining in the 1830s and 1840s coincided with a perceived crisis of unrest and social instability in the republic. The chapter also discusses issues and events that may have influenced the emergence of plea bargaining, including movements for social reform and popular challenge to the common law.

In the landmark Gideon v. Wainwright decision (1963), the U.S. Supreme Court established the federal standard of appointed counsel for indigent defendants as fundamental to fairness. This right has been upheld throughout the years and is central to our adversarial system. The attorney’s responsibility is to zealously serve as the accused’s strongest counselor and advocate. In the context of plea bargaining, the attorney can assist the defendant in making a voluntary, knowing, and intelligent plea decision. The attorney may act as a “debiaser,” counteracting irrationality on the defendant’s part. However, research suggests structural influences and psychological processes may impede the role of the attorney. This chapter explores how legal and extralegal factors affect attorneys’ plea decision-making, which ultimately influence defendants’ decisions to waive or invoke their right to trial.

This chapter examines the influence of the reconsolidation of political power on the origin of plea bargaining in Boston, Massachusetts. It highlights the influence of politics on the creation of the citizens' interpretation of their world and the strategy for their response to crisis. The analysis of these politics reveals micromotives and mechanisms that drove the process of legal change. The chapter also discusses how the urban elite, privately and through the incumbent Whig party, adopted a self-conscious and comprehensive approach in pursuing what it believed to be the holistic interests of the community.

This chapter tries to shed light on the arbitrary exercise of discretion during the plea bargaining process that produce and perpetuate uneven results in the criminal justice process. It begins by describing how the process works. The chapter outlines the case of Andrew Klepper, who was charged as an adult with first-degree sex offense, conspiracy to commit a first-degree sex offense, armed robbery, and conspiracy to commit armed robbery. Despite the horrific nature of the crimes he was charged for, he did not serve even a day in prison. In addition, the case of Erma Faye Stewart, who was arrested for drug distribution on the word of a confidential informant who later was proven to have lied, is presented. Her case shows the pressures that many defendants feel when facing long prison terms, especially when they are detained prior to their trials. In general, the plea bargaining process would be greatly improved if prosecutors were required to provide all of the relevant information that would enable the defendant to make an informed decision.