Freedom now or a future later: Pitting the lasting implications of collateral consequences against pretrial detention in decisions to plead guilty.

Abstract

With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether or not informing individuals of collateral consequences would alter their decisions to plead. Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences—especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention—would not have the desired effect of exerting a strong influence on decisions to plead. Across two studies—the first, an exploratory within-subjects design; the second, a more controlled between-subjects design—we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved. We also saw that, in general, participants were not opposed to the imposition of most collateral consequences. Future directions for plea bargaining research are discussed.

Disentangling the effects of plea discount and potential trial sentence on decisions to plead guilty

“…While somewhat counterintuitive, this pattern of results may be explained by temporal discounting (Vanderveldt et al ., ; see Edkins & Dervan, , for a discussion of discounting in the context of guilty pleas). Excepting for the most severe (i.e., life sentences/death penalty) and least severe (i.e., non‐incarcerative/probationary) penalties, sentences that follow a guilty plea and sentences that follow conviction at trial all represent a delay of some period before one can obtain a desired outcome (i.e., freedom).…”

“…Likewise, the participants in our study all assumed the role of a non‐detained defendant. Criminal defendants held in pre‐trial detention have been found to plead guilty faster than those released prior to trial (Dobbie, Goldin & Yang, ; Sacks & Ackerman, ), and a recent vignette study found that pre‐trial detention significantly increased the odds of pleading guilty for innocent mock defendants when compared to those who were non‐detained (Edkins & Dervan, ). It would be of interest to know how loss/gain frame affects the results we report here.…”

Custody Judgments, Ex‐offender Parents, and Best Interests of the Child

“…In fact, one study calculated the number of statewide collateral consequences listed in statutes as ranging from 342 in Vermont to 1,831 in California, with federal laws and regulations adding an additional 1,196 collateral consequences for federal crimes (Denver, Pickett, & Bushway, 2017). Such collateral consequences make it difficult for people who have served out their punishments to obtain housing, welfare benefits, and food stamps, and they deny them an opportunity to obtain an education and to vote (Edkins & Dervan, 2018). Most importantly for the purposes of this study, without a meaningful income and safe housing, parents (men and women) risk losing their right to parent their children.…”

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

“…Research specifically addressing this question is still in its nascence, but consistent with established theories of temporal discounting (Ainslie, ), preliminary findings suggest that collateral consequences can only be fully weighed if the immediate consequences of the plea are not overbearing. For example, Edkins and Dervan () found that defendants may be less likely to plead guilty with knowledge of collateral consequences, but only if they are in situations where the guilty plea did not have an overbearing immediate reward (e.g, when a detained defendant's plea deal offers immediate freedom). Similar effects are reported in research on confessions in interrogation settings (Madon, Guyll, Scherr, Greathouse, & Wells, ).…”

“…For example, Edkins and Dervan (2018) found that defendants may be less likely to plead guilty with knowledge of collateral consequences, but only if they are in situations where the guilty plea did not have an overbearing immediate reward (e.g, when a detained defendant's plea deal offers immediate freedom). Similar effects are reported in research on confessions in interrogation settings (Madon, Guyll, Scherr, Greathouse, & Wells, 2012).…”