Editing Plea bargain (section)

==Disadvantages and issues==
=== Scope for coercive manipulation ===
Plea bargaining is criticized, particularly outside the United States, on the grounds that its close relationship with rewards, threats and coercion potentially endanger the correct legal outcome.<ref>{{citation|journal=Journal of Criminal Justice|volume=82|issue=4|date=2022|title=How do the consequences of pretrial detention on guilty pleas and carceral sentences vary between misdemeanor and felony cases?|last1=Thomas |first1=C.|last2=Cadoff |first2=B.|last3=Wolff |first3=K. T.|last4=Chauhan |first4=P.|page=102008 |doi=10.1016/j.jcrimjus.2022.102008 |s2cid=253991546 |url=https://www.researchgate.net/publication/365754233}}</ref><ref>{{cite news|last1=Bawden|first1=Tom|title=Analysis: the Natwest Three plea bargain|url=https://www.thetimes.com/article/analysis-the-natwest-three-plea-bargain-xvw5h6dfjmd|access-date=28 June 2017|newspaper=[[The Times]]|date=28 November 2000}}</ref>

Author [[Martin Yant]] discusses the use of coercion in plea bargaining:

{{quote|Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.<ref>{{cite book |first=Martin |last=Yant |title=Presumed Guilty: When Innocent People Are Wrongly Convicted |year=1991 |location=New York |publisher=Prometheus Books |page=[https://archive.org/details/isbn_9780879756437/page/172 172] |isbn=978-0879756437 |url-access=registration |url=https://archive.org/details/isbn_9780879756437/page/172 }}</ref>}}

This tactic is prohibited in some other countries—for example in the United Kingdom the prosecutor's code states:

{{quote|Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.<ref>{{cite web|title=Code for Crown Prosecutors – Selection of Charges|url=http://www.cps.gov.uk/publications/code_for_crown_prosecutors/charges.html|publisher=Crown Prosecution Service|access-date=28 June 2017|url-status=live|archive-url=https://web.archive.org/web/20171214030145/http://www.cps.gov.uk/publications/code_for_crown_prosecutors/charges.html|archive-date=14 December 2017}}</ref>}}

although it adds that in some kinds of complex cases such as major [[fraud]] trials:

{{quote|The over-riding duty of the prosecutor is&nbsp;... to see that justice is done. The procedures must command public and judicial confidence. Many defendants in serious and complex fraud cases are represented by solicitors experienced in commercial litigation, including negotiation. This means that the defendant is usually protected from being put under improper pressure to plead. The main danger to be guarded against in these cases is that the prosecutor is persuaded to agree to a plea or a basis that is not in the public interest and interests of justice because it does not adequately reflect the seriousness of the offending&nbsp;... Any plea agreement must reflect the seriousness and extent of the offending and give the court adequate sentencing powers. It must consider the impact of an agreement on victims and also the wider public, whilst respecting the rights of defendants.<ref>{{cite web|url=http://www.cps.gov.uk/publications/code_for_crown_prosecutors/charges.html|title=Directors' Guidance to accompany the Attorney General's Guidelines on Plea Discussions in cases of Serious or Complex Fraud|publisher=Crown Prosecution Service|date=24 May 2012}}</ref>}}

[[John H. Langbein]] argues that the modern American system of plea bargaining is comparable to the medieval European system of [[Forced confession|judicial torture]]:

{{quote|There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive. Like the medieval Europeans, the Americans are now operating a procedural system that engages in condemnation without adjudication.<ref>{{cite journal |last1=Langbein |first1=John |year=1978 |title=Torture and Plea Bargaining |journal=[[The University of Chicago Law Review]] |volume=46 |issue=1 |pages=3–22 |url=http://www.judicialstudies.unr.edu/JS_Summer09/JSP_Week_4/JS710Wk4.LangbeinTorandPleaBargtxt.pdf |access-date=25 December 2012 |url-status=live |archive-url=https://web.archive.org/web/20130115182720/http://www.judicialstudies.unr.edu/JS_Summer09/JSP_Week_4/JS710Wk4.LangbeinTorandPleaBargtxt.pdf |archive-date=15 January 2013 |doi=10.2307/1599287 |jstor=1599287 }}</ref>}}

=== Consequences for innocent accused ===
Theoretical work based on the [[prisoner's dilemma]] is one reason that, in many countries, plea bargaining is forbidden. Often, precisely the prisoner's dilemma scenario applies: it is in the interest of both suspects to confess and testify against the other suspect, irrespective of the innocence of the accused. Arguably, the worst case is when only one party is guilty: here, the innocent one has no incentive to confess, while the guilty one has a strong incentive to confess and give testimony (including [[Perjury|''false'' testimony]]) against the innocent.{{citation needed|date=October 2015}}

A 2009 study by the European Association of Law and Economics observed that innocent defendants are consistently more likely than guilty defendants to reject otherwise-favorable pleas proposals, even when theoretically disadvantageous to do so, because of perceived unfairness, and would do so even if the expected sanction would be worse if they proceeded to trial. The study concluded that "[t]his somewhat counterintuitive 'cost of innocence', where the preferences of innocents lead them collectively to fare worse than their guilty counterparts, is further increased by the practice of imposing much harsher sentences at trial on defendants who contest the charges. This '[[trial penalty]]' seeks to facilitate guilty pleas by guilty defendants [... and ironically] disproportionately, collectively, penalizes innocents, who reject on fairness grounds some offers their guilty counterparts accept."<ref name="GAT_2012">{{cite journal|last1=Avishalom|first1=Tor|last2=Gazal-Ayal|first2=Oren|last3=Garcia|first3=Stephen M.|title=Fairness and the Willingness to Accept Plea Bargain Offers|journal=Journal of Empirical Legal Studies|date=March 2010|volume=7|issue=1|pages=97–116|doi=10.1111/j.1740-1461.2009.01171.x|url=http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1834&context=law_faculty_scholarship}}</ref>

The extent to which innocent people will accept a plea bargain and plead guilty is contentious and has been subjected to considerable research. Much research has focused on the relatively few actual cases where innocence was subsequently proven, such as successful appeals for murder and rape based upon [[DNA evidence]], which tend to be atypical of trials as a whole (being by their nature only the most serious kinds of crime). Other studies have focused on presenting hypothetical situations to subjects and asking what choice they would make. More recently some studies have attempted to examine actual reactions of innocent persons generally, when faced with actual plea bargain decisions. A study by Dervan and Edkins (2013) attempted to recreate a real-life controlled plea bargain situation, rather than merely asking theoretical responses to a theoretical situation—a common approach in previous research.<ref name="DervanEdkins2013">{{cite journal |last1=Dervan |first1=Lucian E. |last2=Edkins |first2=Vanessa A. |year=2013 |title=The Innocent Defendant's Dilemma: An Innovative Empirical Study of Plea Bargaining's Innocence Problem |journal=[[Journal of Criminal Law & Criminology]] |volume=103 |issue=1 |pages=1 |url=http://scholarlycommons.law.northwestern.edu/jclc/vol103/iss1/1 |access-date=28 June 2017 |url-status=live |archive-url=https://web.archive.org/web/20170703205319/http://scholarlycommons.law.northwestern.edu/jclc/vol103/iss1/1/ |archive-date=3 July 2017 }}</ref> It placed subjects in a situation where an accusation of [[academic fraud]] (cheating) could be made, of which some subjects were in fact by design actually guilty (and knew this), and some were innocent but faced seemingly strong evidence of guilt and no verifiable proof of innocence. Each subject was presented with the evidence of guilt and offered a choice between facing an academic ethics board and potentially a heavy penalty in terms of extra courses and other forfeits, or admitting guilt and accepting a lighter "sentence". The study found that as expected from court statistics, around 90% of accused subjects who were actually guilty chose to take the plea-bargain and plead guilty. It also found that around 56% of subjects who were actually innocent (and privately knew it) also take up the plea-bargain and plead guilty, for reasons including avoiding formal quasi-legal processes, uncertainty, possibility of greater harm to personal future plans, or deprivation of home environment due to remedial courses. The authors stated:<ref name="DervanEdkins2013" />

{{quote|Previous research has argued that the innocence problem is minimal because defendants are risk-prone and willing to defend themselves before a tribunal. Our research, however, demonstrates that when study participants are placed in real, rather than hypothetical, bargaining situations and are presented with accurate information regarding their statistical probability of success, just as they might be so informed by their attorney or the government during a criminal plea negotiation, innocent defendants are highly risk-averse.}}

More pressure to plea bargain may be applied in weak cases (where there is less certainty of both guilt and jury conviction) than strong cases. Prosecutors tend to be strongly motivated by conviction rates, and "there are many indications that prosecutors are willing to go a long way to avoid losing cases, [and that] when prosecutors decide to proceed with such weak cases they are often willing to go a long way to assure that a plea bargain is struck".<ref name="GAT 2012">{{cite journal|last1=Gazal-Ayal|first1=Oren|last2=Tor|first2=Avishalom|title=The Innocence Effect|journal=Duke Law Journal|date=November 2012|volume=62|issue=2|pages=339–401|jstor=23364853}}</ref> Prosecutors often have great power to procure a desired level of incentive, as they select the charges to be presented. For this reason,<ref name="GAT 2012" />

{{quote|[P]lea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement. [... W]hen the case is weak, the parties must rely on charge bargaining ... But [charge bargaining] is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt.}}

Another situation in which an innocent defendant may plead guilty is in the case of a defendant who cannot raise money for a [[bail bond]], and who is being held in custody in a jail or detention facility. Because it may take months, or even years, for criminal cases to come to trial or even indictment in some jurisdictions, an innocent defendant who is offered a plea bargain that includes a sentence of less time than they would otherwise spend in jail awaiting an indictment or a trial may choose to accept the plea arrangement and plead guilty.<ref>{{Cite news |url=https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html |title=The Bail Trap |last=Pinto |first=Nick |date=13 August 2015 |work=Sunday Magazine |publisher=New York Times |url-status=live |archive-url=https://web.archive.org/web/20170112030744/https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html |archive-date=12 January 2017 }}</ref>

=== Misalignment of goals and incentives ===
[[Agency problem]]s may arise in plea bargaining as, although the prosecutor represents the people and the defense attorney represents the defendant, these agents' goals may not be congruent with those of their principles. For example, prosecutors and defense attorneys may seek to maintain good relations with one another, creating a potential conflict with the parties they represent. A defense attorney may receive a flat fee for representing a client, or may not receive additional money for taking a case to trial, creating an incentive for the defense attorney to settle a case to increase profits or to avoid a financial loss.

A prosecutor may want to maintain a high [[conviction rate]] or avoid a losing high-profile trials, creating the potential that they will enter into a plea bargain that furthers their interests but reduces the potential of the prosecution and sentence to deter crime.<ref>{{cite journal|author-link1=Stephen Schulhofer|last1=Schulhofer|first1=Stephen J.|title=Plea Bargaining as Disaster|journal=The Yale Law Journal|date=June 1992|volume=101|issue=8|pages=1979–2009|jstor=796954|doi=10.2307/796954|url=https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7446&context=ylj}}</ref> Prosecutors may also make charging decisions that significantly affect a defendant's sentence, and may file charges or offer plea deals that cause even an innocent defendant to consider or accept a plea bargain.

=== Issues related to cost of justice ===
Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning his case and sending a defendant away to prison for 10 years, they may make a plea agreement for a sentence of one year; but if plea bargaining is unavailable, a prosecutor may drop the case completely.<ref>{{cite journal|volume=13|journal=Law & Society Review|page=555|date=1978–1979|title=Plea Bargaining: A Critic's Rejoinder|last=Kipnis|first=Kenneth|url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/lwsocrw13&div=35&id=&page=|url-status=live|archive-url=https://web.archive.org/web/20110711161709/http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals%2Flwsocrw13&section=35|archive-date=2011-07-11}}</ref>