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American Law and Economics Review Advance Access published online on October 12, 2007
American Law and Economics Review, doi:10.1093/aler/ahm010
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Copyright © The Author 2007. Published by Oxford University Press on behalf of the American Law and Economics Association.

Guilt Shall Not Escape or Innocence Suffer? The Limits of Plea Bargaining When Defendant Guilt is Uncertain

David Bjerk

Department of Economics, Claremont McKenna College

Send correspondence to: David Bjerk, Department of Economics, Claremont McKenna College, 500 E. Ninth St., Claremont, CA 91711, USA; E-mail: david.bjerk{at}gmail.com


  Abstract

This article examines optimal prosecutor behavior with respect to plea bargaining when defendant guilt is uncertain. I show that when jury beliefs and behavior are determined endogenously in equilibrium along with defendant and prosecutor behavior, plea bargaining can play only a limited role in managing society's conflicting desires to maximize punishment of the guilty and minimize punishment of the falsely accused. In particular, while it can be optimal for prosecutors to use plea bargaining to induce a large fraction of guilty defendants to voluntarily sort themselves from the innocent, such sorting must come at the cost of imposing relatively short sentences on such guilty defendants who accept plea bargains.

Thanks to Phil Curry, Abigail Payne, Jennifer Reinganum, and participants at the 2006 ALEA conference for very helpful comments on earlier versions of this paper. JEL codes K14, K41, D81. A previous version of this paper was entitled "Guilt Shall Not Excape or Innocence Suffer: A Theory of Optimal Prosecutor Behavior When Defendant Guilt is Uncertain", but was substantially different from this current one.


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