Why is plea bargaining at once so widely condemned and so widely tolerated? Plea bargains are both paradigmatic bargains of the sort we routinely enforce in other contexts and the product of a seriously flawed bargaining structure. The critics, for their part, have misused or misapplied classical contract arguments for limiting contractual autonomy. At the same time, there are fundamental structural impediments in the plea bargaining context that may underlie the widespread antipathy to the practice. These barriers to efficient bargaining are not, however, grounds for abolition, but instead suggest more focused reforms of current practices. Indeed, the single-minded academic focus on abolition may have contributed to a second-order problem: the development of legal doctrine that makes strategic bargaining problems worse rather than better. By altering the doctrine that governs such issues as when and how bargains are enforced, the consequences of defendants' mistakes, and how background prices (i.e., post-trial sentences) are set, the state can reduce the incentives for strategic bargaining and improve the efficiency and fairness of the plea bargaining process.
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