ABSTRACT
Anglo-American justice systems are marked by the importance of adversarial principles, including evidentially contested trials. An adversarial approach is often said to be the best way of protecting the presumption of innocence against the might of the state. However, the daily reality is starkly different. Anglo-American justice systems depend heavily on the generation of guilty pleas and agreement between prosecution and defense. Why is this? Is this reliance on guilty pleas simply borne of pragmatic necessity, or are there are other dynamics at play? What are the normative implications for the fairness of the system?
Legal practitioners and defendants widely believe that those who plead guilty are likely to receive a reduced sentence compared to those who are convicted of the same charges following a trial. This chapter interrogates the plea-dependent (guilty/not guilty) “sentence differential.” “Sentence differential” is the normatively neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.”
The first part investigates whether a sentence differential violates the cherished values of the presumption of innocence and the notion of equality before the law. It examines the criticism that the sentence differential operates to penalize those who continue to plead not guilty by imposing (or threatening to impose) a higher sentence than if they plead guilty. It also considers the criticism that the sentence differential may have disparate impacts on different groups (specifically minorities and those who are socially and economically disadvantaged). The second part reflects on why, in light of the dangers to principled sentencing and liberal rule of law values, justice systems continue to persist with guilty plea discounts. Finally, drawing on recent empirical evidence, the third part investigates how the experiences of defendants may be affected by the sentence differential.
