Document Type
Article
Publication Date
4-2019
Abstract
In Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty, Lucian E. Dervan traces the historical evolution of plea bargaining from its rejection under English common law to its dominance in modern American criminal adjudication.The article demonstrates that inducements to plead guilty—once condemned as coercive and incompatible with truth-seeking—emerged in the United States in the nineteenth century, expanded during periods of overcriminalization and prohibition, and were ultimately constitutionalized in Brady v. United States (1970). Dervan critically examines the Supreme Court’s assumption in Brady that innocent defendants would not falsely plead guilty in significant numbers. Drawing on empirical psychological research, including experimental studies of plea decision-making, the article shows that substantial percentages of innocent participants will accept plea offers, particularly when confronted with sentencing differentials or pretrial detention. The piece further analyzes the Court’s recent plea-bargaining jurisprudence—Padilla, Lafler, Frye, Lee, and Class—as evidence of renewed doctrinal attention to the realities of negotiated justice. Concluding that plea bargaining has become the criminal justice system rather than an adjunct to it, the article calls for reforms that preserve efficiency while reinvigorating the constitutional right to trial and protecting against wrongful convictions generated by the trial penalty.
Recommended Citation
Lucian E. Dervan, Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty, 31 Fed. Sent'g Rep. 239 (April/June 2019).
