Subgame Perfect Plea Bargaining in Biform Judicial Contests MORDECHAI E. SCHWARZ * The Open University of Israel                                            !"#$      %&’ !()$     *     +                                   ,  - . 1. INTRODUCTION Plea bargaining involves negotiations between a defendant and a prosecutor regarding the conditions under which the defendant will enter a guilty plea. It is estimated that over 95% of the convictions in criminal cases in the United States result from a negotiated guilty plea (Grossman and Katz, 1983; Franzoni, 1999; Wright, 2005; Ulmer et al., 2010), but the rate varies with the seriousness of the crime. 1 From a positivist point of view, as Carney and Fuller (1969) pointed out, “[I]t would seem reasonable to expect that the weaker the case against a defendant, the more entitled is he to a trial by jury, and, correspondingly, the more questionable is the propriety of the negotiated plea. In practice, however, it seems that the weaker the case (up to a point), the more likely is the prosecutor to press for a guilty plea, inasmuch as this was the most often mentioned reason given by prosecutors for trying a negotiated plea.” Hence, * I wish to thank Aviad Heifetz for very helpful comments on earlier versions of this work. 1 Plea bargains constituted 98% of convictions for embezzlement, immigration offenses, and gambling, about 80% for kidnapping and assault, but only 67% of those for murder (Reinganum, 2000). DOI: 10.1515/1555-5879.1623 Brought to you by | Open University Authenticated | 192.114.2.48 Download Date | 5/26/13 9:09 AM