To plead? or not to plead? 'Guilty' is the question. Re-thinking plea decision-making in anglo-american countries

Jay Gormley, Cyrus Tata

Research output: Chapter in Book/Report/Conference proceedingChapter

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In the daily work of the criminal justice process, the relationship between plea decision-making and sentencing is one of the most pressing questions. It is thought to influence how defendants plead, affect caseload pressures, and potentially have implications for the presumption of innocence as well as the experience of victims. This essay evaluates the arguments for and against the practice of altering a sentence as a consequence of a plea of ‘not guilty’ or ‘guilty’ (what we call 'the Plea-Dependent Sentence Differential'). It also appraises the state of international knowledge about the practice and proposes agendas for future research.
The essay is organized as follows. Section I 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). Section II 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, Section III investigates the complex dynamics of how the experiences of defendants may be affected by the sentence differential, drawing on some recent empirical evidence from Scotland.
Original languageEnglish
Title of host publicationHandbook on Sentencing Policies and Practices in the 21st Century
EditorsCassia Spohn, Pauline Brennan
Place of PublicationNew York, NY
Number of pages26
ISBN (Electronic)978-0367136499
Publication statusPublished - 24 Jun 2019


  • sentencing
  • guilty pleas
  • sentence discounting
  • trial tax
  • criminal process
  • victims
  • presumption of innocence
  • criminal Justice


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