Trial Distortion and the End of Innocence in Federal Criminal Justice (original) (raw)
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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.
BIO: * Acting Professor of Law, UCLA School of Law. I would like to thank Rick Abel, Norm Abrams, Peter Arenella, Michael Asimow, Devon Carbado, Ann Carlson, Scott Cummings, Mirjan Damaka, Scott Dewey, David Dolinko, Sharon Dolovich, Robert Goldstein, Mark Greenberg, Lisa Griffin, Joel Handler, Cheryl Harris, Gia Lee, Harry Litman, Tim Macht, Jennifer Mnookin, Herb Morris, Danny Richman, Arthur Rosett, Seana Shiffrin, David Sklansky, Kirk Stark, Lynn Stout, Carol Steiker, Steve Yeazell, Noah Zatz, and participants in the workshop "Rethinking "Legal Transplants' and "Mixed Jurisdictions,'" organized by Cornell School of Law and the Institut d'Etudes Politiques de Paris (Science Po), Paris, July 2005; the 2005 UCLA Work-in-Progress Summer Colloquium; and the UCLA Junior Faculty Group for their helpful comments on earlier drafts. I also would like to thank Todd Martin and Nick Oberheiden for their research assistance and Scott Dewey and Todd Martin for e...
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.
Adversarial and Nonadversarial Justice: A Comparison of Guilty Pleas and Trials*
Criminology, 1985
Despite the frequency of guilty pleas, researchers disagree about the ability of plea bargaining to provide justice. Critics argue that plea bargaining deprives defendants of due process rights and procedural safeguards Proponents argue that guilty pleas save resources for cases that require trial and allow oft'cials flexibility to tailor justice to individual defendants. This article explores these issues by examining the eflect of defendant and case characteristics on sentence severity for 3,269 male robbery and burglary defendants who either pled guilty or were tried in six US. jurisdictions, three of which had recently attempted to eliminate or greatly reduce plea bargaining and three with few restrictions on plea bargaining. The results conjirm some criticisms of plea bargaining, but refute others. More criminally experienced defendants and defendants who pled guilty at the earliest opportunity did not receive sentencing leniency. Moreover, to a large extent, the same variables predict sentence severity for guilty pleas and trials. In contrast, the results show that defendants convicted at trial received more severe sanctions than defendants who pled guilty, controlling for case severity, evidence, and ofender characteristics The results also suggest that the jurisdictions which attempted to control plea bargaining through more centralized control of assistance succeeded in tightening the $t between case characteristics and sentences for both cases aa'judicated by guilty plea and trial. Although guilty pleas account for 80% to 90% of all felonies adjudicated in the United States, criminal justice experts disagree about whether widespread reliance on plea negotiation represents a threat to the administration of justice.
Plea Bargaining and the Miscarriage of Justice
Journal of Quantitative Criminology, 2019
Objectives We examine whether, on average, plea bargaining encourages guilty pleas among defendants who are factually innocent. Methods We develop a formal theory of plea bargaining in which defendants take into account the possibility of false convictions or acquittals when making plea-bargain decisions. We use an incidentally truncated bivariate probit model to test the theory, which predicts that if innocent defendants plead guilty, the correlation (ρ) between the unobserved heterogeneity regarding selection into trial and regarding conviction at trial should be sufficiently positive. The method does not require knowledge of whether individual defendants are factually guilty or innocent. Since ρ is also predicted to vary directly with the unobserved toughness of prosecutors, we develop a decomposition theorem to distinguish between the effects of defendants and prosecutors in plea bargain decisions. Results Using data on 2012 criminal cases decided in Israeli courts from 2010 to 2011, we find that ρ is large and positive. Hence, defendants who did not plea bargain were positively selected in terms of conviction. This means that defendants who accepted plea bargains had smaller counterfactual conviction probabilities than observationally similar defendants who went to trial. Conclusions The results indicate that, on average, factually innocent defendants in Israel during this period took plea bargains instead of going to trial. This contradicts "innocence effect" theory, which predicts that factually innocent defendants, on average, reject plea bargains. Our findings are important for research on shadow trial theory, since they show that selection into plea bargains cannot be ignored when inferring counterfactual trial outcomes for plea bargainers.
Psychology, Crime & Law, 2018
In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process.
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?