Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty

31 Federal Sentencing Reporter 239-247 (2019)

16 Pages Posted: 29 Jan 2021

Date Written: June 1, 2019


This article beings with an examination of the historical rise of plea bargaining and discusses how bargained justice emerged from a deep common law tradition that had rejected the use of incentives to induce confessions of guilt. This introduction to the subject concludes by considering the language used by the Supreme Court in 1970 to diverge from these past precedents and approve of bargains, including a Justice’s words of caution regarding innocence. The article then delves into plea bargaining’s innocence issue more squarely and considers how the incentives offered to defendants impact the accuracy and reliability of guilty pleas. This discussion includes examination of the complex psychological forces at play within defendant decision-making, the significant advances that have been achieved in the law and psychology discipline during recent years, and what this means about the Supreme Court’s words regarding innocence in 1970. Finally, the article concludes by considering the Supreme Court’s recent plea bargaining jurisprudence and contemplates where our system of justice might be heading next.

Keywords: Plea Bargaining, Bargained Justice, Criminal Procedure, Psychology, Psychological, Innocence, Defendant Decision-Making, Incentives

JEL Classification: K00, K10, K14, K40, K41, K42

Suggested Citation

Dervan, Lucian E., Bargained Justice: The History and Psychology of Plea Bargaining and the Trial Penalty (June 1, 2019). 31 Federal Sentencing Reporter 239-247 (2019), Available at SSRN: or

Lucian E. Dervan (Contact Author)

Belmont University School of Law ( email )

1900 Belmont Boulevard
Nashville, TN 37212
United States


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