Bargaining for Freedom: A Person-by-Situation Approach to Studying Plea-Bargain Decision-Making (original) (raw)
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Plea Bargaining: A Test of Dual Discounting Preferences for Non-Monetary Losses
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Judgment and decision-making research on discounting suggests that when humans are thinking about gains, they tend to prefer certain and immediate outcomes to uncertain and delayed outcomes. However, discounting has been studied primarily using monetary commodities and, until recently, by testing one feature of the binary forced-choice task at a time: delay, probability, or amount of money received/lost. The present research is the first test of a dual discounting task that combines probability and delay into a single, binary forced-choice task in a non-monetary loss context. The key findings, based on three studies, suggest that delay and probability discounting play a significant role in decisions including non-monetary loss commodities like plea bargaining. Future work should explore the boundary conditions of dual discounting based not only on the nature of the binary choice (probability and delay) but also on the nature of the commodity (amount, valence, and quantifiability).
Shining a Light on the Shadow-Of-Trial Model: A Bridge between Discounting and Plea Bargaining
2017
Phillip Bivens, accused of raping and killing a woman in Mississippi in 1979, was confronted with this choice: take the bargain of life in prison, or go to trial and face the death penalty.2 After three decades in prison, Bivens was exonerated in 2010 by DNA tests conducted by the Innocence Project in New Orleans.3 Why would Bivens, who was factually innocent, plead guilty to a crime he did not commit and forgo his constitutional right to a trial? How can this be explained? Bivens’s choice may be deemed rational because his choice was between life, albeit life in prison, and death. But what about defendants confronted with life in prison or twenty years in prison—why would an innocent defendant plead guilty then?
Psychology, Public Policy, and Law, 2021
Existing research suggests that incentives to plead guilty may influence guilty and innocent defendants differently. This study examines that possibility through testing theoreticallyinformed predictions relating to the interaction between different types of plea discount (sentence length and sentence type), guilt, and probability of conviction in predicting plea decisions, with a focus on the discounts in England and Wales. Participants (N=3,375) made plea decisions in vignettes that varied discount type offered, probability of conviction, and guilt between-subjects. Participants also answered questions about considerations that were important to them when making plea decisions. Results provide support for predictions, specifically at higher levels of probability of conviction, by showing that a discount resulting in a categorically different sentence type (probation rather than custody) encouraged both 'guilty' and 'innocent' participants to plead guilty, but that a discount resulting only in a shorter sentence of the same type (a 1/3 reduction in sentence-length) only encouraged 'guilty' participants to plead guilty. Participant reports of the considerations important to them when pleading suggest that the categorical discount reduced the importance of factual guilt or innocence in the decision-making of innocent defendants. Findings suggest that utilising plea discounts that vary sentences quantitatively but not categorically is important in maximising the extent to which plea discounts appeal to guilty but not innocent defendants.
Fairness and the Willingness to Accept Plea Bargain Offers
In contrast with the common assumption in the plea bargaining literature, we show fairnessrelated concerns systematically impact defendants’ preferences and judgments. In the domain of preferences, innocents are less willing to accept plea offers than guilty defendants and all defendants reject otherwise attractive offers that appear comparatively unfair. We also show that defendants who are uncertain of their culpability exhibit egocentrically-biased judgments and reject plea offers as if they were innocent. The article concludes by briefly discussing the normative implications of these findings.
An Explicit Test of Plea Bargaining in the “Shadow of the Trial”
Criminology, 2014
Bargaining in the "shadow of the trial," which hinges on the expectations of trial outcomes, is the primary theory used by noncriminologists to explain variation in the plea discount given to defendants who plead guilty. This study develops a formal mathematical representation of the theory and then presents an empirical test of the theory using an innovative online survey with responses to a hypothetical case from 1,585 prosecutors, defense attorneys, and judges. The key outcomes are the probability that the defendant will be convicted at trial, the sentence for the defendant if convicted, and the best plea that the respondent would accept or offer. Variation in the outcomes is created through experimental variation in the information presented to the respondents. Structural regression models are estimated to fit the formal theoretical models, and the instrumental variables method is used to correct for measurement error in the estimate for probability of conviction. The data support the basic shadow model, with minor modifications, for only prosecutors and defense attorneys. Controlling for the characteristics of the individual actors and their jurisdictions adds explanatory value to the model, although these control variables did not affect the key coefficients from the shadow model.
Social Psychology, Information Processing, and Plea Bargaining
Marq. L. Rev., 2007
and Peter Joy for their helpful suggestions and comments. Thanks also to Andrea Schneider, Michael O'Hear, and all of the participants in the Marquette Symposium on Criminal Law and Dispute Resolution held at Marquette University Law School in April 2007. 1. Plea bargaining accounts for the vast majority of outcomes of criminal cases, and, despite its critics, the process shows no sign of decreasing in importance. Indeed, the percentage of convictions obtained through a guilty plea increased from eighty-seven to ninety-six percent between 1990 and 2004. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF
The Impact of Trial Penalty and Evidence Strength on Plea Deal Decision-Making
2017
Despite its popular use in the U.S. legal system, research on plea bargaining and the factors that affect plea bargain decision-making is limited. Although it has been argued that plea bargaining is necessary to the efficiency of the courts (Williams-Fisher, 2005), critics of the practice argue that offers of leniency relative to the threat of the trial penalty may be coercive, so much so that even innocent defendants can be compelled to plead guilty (Bibas, 2004; Givelber, 1996). Others have argued that defendants are at a disadvantage in the negotiations because they are rarely privy to the evidence held by the prosecutor (Meyn, 2014). This study found that trial penalty, evidence strength, and guilt all had an impact on the likelihood to accept the plea. Furthermore, it sheds light on the different ways that guilty and innocent participants make plea deal decisions. IMPACT OF TRIAL PENALTY AND EVIDENCE STRENGTH 2 MONTCLAIR STATE UNIVERSITY The Impact of Trial Penalty and Evidence...
Social psychology and plea bargaining: Applications, methodology, and theory
Journal of Personality and …, 1978
Journal of Personality and Social Psychology 1978, Vol. ... are discussed in terms of information differences between innocent and guilty defendants and the availability heuristic. ... as are limitations of the present approach and suggestions for further research on plea bargaining. ...
Sentencing and Plea Bargaining: Guilty Pleas Versus Trial Verdicts
Criminology and Criminal Justice, Criminal Courts and Prosecutors (ed. Michael Tonry), 2016
In the daily work of criminal justice, the relationship between plea decision-making and sentencing is important. Meanwhile in the academic and policy literatures, it is one of the most controversial. This essay appraises the international empirical literature and the moral arguments surrounding this plea-dependent (guilty/not guilty) “sentence differential.” Sentence differential is the morally neutral term used here to denote practices variously termed as “sentence discount,” “trial tax/penalty,” “guilty plea discount/reduction,” and “sentence bargain/negotiation.” Section II analyzes whether the sentence differential undermines the presumption of innocence. Section III investigates whether the sentence differential violates legal equality. Section IV assesses the three main justifications for the differential. Section V scrutinizes measurement of the sentence differential. Section VI proposes an agenda for future research, including the need for deeper research into the experiences of and interpretations by defendants of the justice process.