An Explicit Test of Plea Bargaining in the “Shadow of the Trial”

Abstract

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.Defendants who plead guilty usually receive substantially shorter sentences than observably equivalent people convicted at trial. 1 The implication is that defendants receive a discount for pleading guilty or, alternatively, a penalty for going to trial. 2 The

Sentencing on the Evidence

“…Even if this were true, it does not deny the problematic role of evidentiary weight on sentencing decisions in the postconviction arena. In the end, because evidentiary weight is found to increase sentence length for defendants convicted at trial, where judges have greatest exposure to the evidence, the argument that the relationship between evidence and sentence severity is driven mostly or entirely by earlier stage processes and actors is undercut (Bushway et al, 2014). More importantly, it is post verdict in trial cases that prosecutors are least influential at sentencing and judges have the greatest discretionary powers.…”

“…98-99). Finally, although there is a small body of literature testing the shadow of a trial model in plea cases, which evaluates the influence of various types of evidence on acceptable plea sentences (Bushway, Redlich, & Norris, 2014), virtually no attention has been directed at why these associations might exist post conviction in cases disposed via trial.…”

“…5. Recently, Bushway, Redlich, and Norris (2014) provided an empirical test of the shadow of the trial model, based on an online survey of judges, prosecutors, and defense attorneys. They tested the model, using a hypothetical case scenario (in which types of evidence and criminal histories varied), by assessing the relationship between the expected sentence at trial (calculated by multiplying the probability of conviction with the expected sentence at trial) and the acceptable plea.…”

The promise of behavioral economics for understanding decision‐making in the court

“…Importantly, this is not the first time risk preferences have been implicated in a decision made throughout the court, but it is the first attempt to acknowledge the broader importance of risk preferences and attitudes on risk across decision makers and decisions within the court. Bushway, Redlich, and Norris () applied these risk preference principles to evaluate guilty plea decision‐making by prosecutors and defense attorneys with a hypothetical vignette design. They found that prosecutors and defense attorneys, on average, are more likely to agree to a guilty plea offer if the negotiated sanction was less than the sentence at trial weighted by the possibility of an acquittal.…”

State of the States: A survey of statutory law, regulations and court rules pertaining to guilty pleas across the United States

“…Psychologists have become increasingly interested in examining the influence of various system‐level (e.g., penalty differentials; access to evidence; mandatory sentencing schemes) and defendant‐level (e.g., gender; race; factual innocence) factors on plea decision‐making and outcomes. Although this research is still in its early stages, we are beginning to understand the decision‐making of defendants and prosecutors (Bushway, Redlich, & Norris, ; Kramer, Wolbransky, & Heilbrun, ) and the contexts in which plea decisions are made (Zottoli, Daftary‐Kapur, Winters, & Hogan, ). Studies have revealed aspects of the plea process that may undermine defendant autonomy (Edkins & Dervan, ) and have identified potential outcome disparities for vulnerable groups (Daftary‐Kapur & Zottoli, ; Edkins, ; Kutateladze, Andiloro, Johnson, & Spohn, ).…”