The inefficiency of plea bargaining

Gormley, Jay (2022) The inefficiency of plea bargaining. Journal of Law and Society, 49 (2). pp. 277-293. ISSN 0263-323X (https://doi.org/10.1111/jols.12360)

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Abstract

The fundamental assumption underlying plea bargaining is that it is ‘efficient’. Even ardent critics of plea bargaining often accept the assumption that it is efficient in being cost effective. For proponents, beliefs about plea bargaining's efficiency are used to argue that it is beneficial, even necessary, on pragmatic grounds. From this assumption about efficiency, volumes of laws and policies have been created. This article uses empirical data to demonstrate the flaws in this foundational tenet of plea-bargaining logic. The article shows that, in reality, plea-bargaining practices have imported their own inherent inefficiencies into the criminal process. These inefficiencies are detrimental not only to cost effectiveness but also to justice and fairness. Foremost among these inefficiencies are the (some argue iniquitous) game-playing cultures that, ironically, policymakers have unintentionally fostered in striving for efficiency. The article demonstrates the pressing need to better recognize and understand these counterintuitive inefficient consequences of plea bargaining.

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