Economic Theory and Plea Bargains

I am going to jump on the Grits bandwagon and say that I don't understand why Scott isn't writing for mainstream media. His incredible and pointed analysis is fascinating. This is a long article but do yourself a favor and give it a read.
Ever since I majored in economics as a youngster at UT-Austin two decades ago, I've always had a latent fascination with the dilettantish economic assumptions behind much of criminal law and the flaws behind them. These faulty assumptions are perhaps most evident in the arena of plea bargaining, where attorneys and judges operate under an absurd legal fiction that a plea agreement is a mere "contract" entered into freely by two parties just like any economic arrangement. Of course, one party's only agreeing because of coercion, and that fact skews every other economic assumption made by plea-bargain apologists in favor of the current system.

Doc Berman points to an interesting (if logorrheic) academic paper by Russell Covey from Georgia State law school asking whether plea bargains can be reasonably analyzed as simple economic transactions. Covey declares that current "research suggests that conventional law and economics descriptions of plea bargaining as the product of the rational, bilateral exchange of entitlements driven by punishment-maximization/minimization strategies simply does not provide an adequate account of the plea bargaining system."

In English, that says free markets don't coerce contracts and plea bargains do.

Because of inherent "cognitive biases" at play during market transactions that protect consumers from bad outcomes, Covey argues, traditional economic theory would suggest we should expect relative few plea bargains. "Cognitive research ... depicts a bargaining context dominated by converging vectors all pointing away from negotiated settlements and in the direction of adversarial dispute resolution," he writes. "What is more, because most criminal defendants do not pay their own legal costs but instead receive state-compensated lawyers, one of the most significant economic incentives to compromise litigation—legal costs—is frequently not part of the defendant’s calculus...(Read the entire article at Grits)

Grits For Breakfast.