Plea Bargaining and the Miscarriage of Justice

Plea bargains raise concerns about the miscarriage of justice, because they may encourage innocent defendants to plead guilty. This issue has thus far escaped empirical testing due to the unobservable nature of defendants’ true guilt or innocence and whether plea bargainers would have been convicted in court. We offer a novel approach to assess whether plea bargaining is indeed marked by the miscarriage of justice using a bivariate probit selection model to estimate the covariation between the unobservable correlates of selection into trial and the unobservable correlates of conviction. 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 is positive and large. We then calculate the counterfactual probability of conviction for defendants who did not go to trial, showing that defendants who pled guilty would have been much less likely to be convicted than observationally similar defendants who went to trial. This result has important implications for Shadow Trial Theory and the Innocence Effect, and it strongly suggests that plea-bargaining in Israel during this period was marked by the miscarriage of justice. Josh Guetzkow is senior lecturer at the Institute of Criminology and the Department of Sociology and Anthropology at Hebrew University of Jerusalem. His work primarily investigates the role of culture and institutions in topics related to punishment, law, and inequality. His work has been published in the American Sociological Review, Law and Society Review, Annals of the American Academy of Political and Social Science, Mobilization, and American Behavioral Scientist.