Sentencing Discounts, Attorney Compensation and Plea Bargaining in Criminal Cases

AbstractOffering defendants a sanction reduction if they agree to plead guilty at an early stage in criminal proceedings represents one form of “plea bargaining”. As with the better known form, where a defendant agrees to plead guilty to a lesser charge in exchange for the dropping of a more serious charge, it is motivated by a wish to reduce expenditure on the criminal justice system. In England and Wales sentencing discounts have been used as part of an effort to reduce the high proportion of criminal cases that end in a “cracked trial” where a defendant who had originally pleaded not guilty changes their plea to guilty “at the courtroom door”. The paper presents a model of sentencing discounts and looks also at the closely-related issue of attorney compensation and the associated agency issues. Using data on “cracked trials” from England and Wales and evidence from the US on the relationship between plea bargaining and attorney compensation we argue that sentencing discounts alone may not be a very effective way of economising on legal resources unless they are supported by an appropriate structure of payments to defence lawyers.