NCJ Number
53498
Journal
New York University Law Review Volume: 53 Issue: 4 Dated: (OCTOBER 1978) Pages: 783-834
Date Published
1978
Length
51 pages
Annotation
INSTITUTIONAL ECONOMIC THEORY IS EMPLOYED TO EXAMINE FAIRNESS AND EFFICIENCY ASPECTS OF PLEA BARGAINING, WITH CONSIDERATION GIVEN TO BOTH ECONOMIC AND MORAL COSTS OF CRIME.
Abstract
PLEA BARGAINING, IN WHICH ACCUSED PERSONS SURRENDER THEIR CONSTITUTIONAL RIGHT TO TRIAL IN EXCHANGE FOR SENTENCE LENIENCY, HAS BECOME THE PRIMARY MEANS OF ADJUDICATING CRIMINAL VIOLATIONS; 90 PERCENT OF CRIMINAL CONVICTIONS ARE BY GUILTY PLEA. THE ANALYSIS OF THE PLEA BARGAINING SYSTEM DRAWS ITS TECHNIQUES FROM INSTITUTIONALISM, A DISTINCTIVE SCHOOL OF ECONOMIC THOUGHT. INSTITUTIONAL THEORY SEEKS TO ACCOUNT FOR THE ORGANIZATION OF ECONOMIC ACTIVITIES AND FOR THE EVOLUTION OF PARTICULAR SOCIAL AND ECONOMIC INSTITUTIONS WITHIN A MARKET EXCHANGE-BASED SOCIAL ORDER. THE VALUE OF AN INSTITUTIONAL ECONOMIC APPROACH TO ISSUES IN CRIMINAL LAW IS BASED ON THE ABILITY OF ITS MARKET MODEL TO PROVIDE INSIGHTS ABOUT OBSERVED PHENOMENA (HUMAN ACTIVITIES) AND TO MAKE EXPLICIT VALUE JUDGMENTS INHERENT IN THE CRIMINAL PROCESS. THE FOLLOWING ASPECTS OF CRIME AND PLEA BARGAINING ARE ADDRESSED WITHIN THE CONTEXT OF INSTITUTIONAL ECONOMIC THEORY: COSTS OF CRIME, DETERMINING THE PUNISHMENT PRICE, EXACTING THE PUNISHMENT PRICE (TRANSACTION COSTS), THE NEGOTIATED PLEA IN THE PRICE EXACTION FRAMEWORK, ECONOMIC CONSIDERATIONS IN PERFECTING THE PLEA BARGAIN, AND MORAL ISSUES RELATED TO EXTERNAL ASPECTS OF THE PLEA BARGAIN. THE INSTITUTIONAL MODEL IS CONSIDERED TO BE AN EMPIRICAL OR SOCIOLOGICAL ADVANCE OVER OTHER DISCUSSIONS OF THE CRIMINAL PROCESS BECAUSE IT MORE ACCURATELY REFLECTS THE COSTS OF CRIME. CASE LAW IS REVIEWED. (DEP)