Plea bargaining in the United States

Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory has been used to analyze the plea bargaining decision.

The constitutionality of plea bargaining was established by Brady v. United States in 1970, although the Supreme Court warned that plea incentives which were sufficiently large or coercive as to over-rule defendants' abilities to act freely, or used in a manner giving rise to a significant number of innocent people pleading guilty, might be prohibited or lead to concerns over constitutionality.Santobello v. New York added that when plea bargains are broken, legal remedies exist.

Several features of the American justice system tend to promote plea bargaining. The adversarial nature of the system puts judges in a passive role, in which they are completely dependent upon the parties to develop the factual record and cannot independently discover information with which to assess the strength of the case against the defendant. The parties thus can control the outcome of the case by exercising their rights or bargaining them away. The lack of compulsory prosecution also gives prosecutors greater discretion. And the inability of crime victims to mount a private prosecution and their limited ability to influence plea agreements also tends to encourage plea bargaining. Prosecutors have been described as monopsonists.

Plea bargaining has existed for centuries; in older legal systems convictions were at times routinely procured by confession, and laws existed covering such criminal confessions, although by the 18th century inducements had been forbidden in English Law to prevent miscarriage of justice. Accordingly, early US plea bargain history led to courts' permitting withdrawal of pleas and rejection of plea bargains, although such arrangements continued to happen behind the scenes. A rise in the scale and scope of criminal law led to plea bargaining's gaining new acceptance in the early 20th century, as courts and prosecutors sought to address an overwhelming influx of cases:

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