Plea Bargaining and the Miscarriage of Justice

• In Event: 4422 - Section on Sociology of Law Refereed Roundtable Session
  In Refereed Roundtable 60min: Table 02. Legal Actors and Practice

Abstract

The increasing reliance on plea bargains worldwide has raised important concerns about the miscarriage of justice, because the use of plea bargains may encourage innocent defendants to plead guilty. But this issue has hitherto escaped empirical testing due to the unobservable nature of defendants’ true guilt or innocence. In this paper we offer a novel approach that treats plea bargaining as a sample selection problem, which enables us to assess whether plea bargaining is indeed marked by the miscarriage of justice. We use a bivariate probit selection model to estimate the covariation between the unobservable correlates of conviction and the unobservable correlates of selection into trial (i.e., when no plea agreement is reached). If plea bargaining is marked by the miscarriage of justice, then this covariation should be positive. Using data on 2,012 criminal cases decided in Israeli courts from 2010 to 2011, we show that this covariation between is positive and large. This result has important implications for Shadow Trial Theory and the Innocence Effect, and it strongly suggests plea-bargaining in Israel during this period was marked by the miscarriage of justice.

Authors

• Michael Beenstock, Hebrew University of Jerusalem

• Josh Guetzkow, Hebrew University

• Shir Kamenetsky-Yadan, Hebrew University of Jerusalem