Is plea bargaining a rational choice? Plea bargaining as an engine of racial stratification and overcrowding in the United States prison system

Abstract

The United States incarcerates 1% of American adults. Incarceration rates have increased steadily since 1970 even while criminal activity has dropped. Additionally, while crime rates are relatively equal across races, the rate of incarceration for blacks has risen faster than for whites. This paper argues that plea bargaining, which accounts for 95% of criminal dispositions, is a major causal factor of high prison populations and high levels of racial stratification in prisons. This paper hypothesizes that by placing defendants in a multi-player Prisoner’s Dilemma, and by reducing transaction costs, plea bargaining allows prosecutors to act on a political will to incarcerate large numbers of people. Additionally, it hypothesizes that since black defendants are likely to have less faith in the criminal justice system than white defendants, this places them in a worse bargaining position, leading to systematically worse bargains. These differential bargains aggregate into a stratified prison population.