The Trade-offs of Justice: A Theory of the Optimal Use of Alternative Criminal Procedures

Criminal cases can be adjudicated via court trials or alternative criminal procedures, such as plea bargaining and penal order. We develop a model of optimal allocation of cases across these alternatives based on offense severity and available evidence. The model predicts that the evidence standards — and thus the number of wrongful convictions and wrongful acquittals — fundamentally depend upon the cost structure of the criminal process as well as on the budget resources allocated to the criminal justice system. We call this phenomenon the marginal cost of justice. Our model offers explanations why the scope of plea bargaining in the United States has been traditionally broader than the scope of alternative procedures in Europe and why their use in Europe has recently expanded.