Plea Bargaining PSY 256
Key Issues 1.
Prosecutorial Decision-Making
2.
Defense A8orney Decision-Making
3.
Defendant Decision-Making
4.
Innocence
5.
Poverty
You’ve been arrested… …now what?
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6th Amendment:
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“…in all criminal prosecuIons, the accused shall enjoy the right to a speedy and public trial, by an imparIal jury of the state and district wherein the crime shall have been commi8ed.”
Paul Hayes § Charged with forging a check ($88.30) Punishment: 2-10 years Plea offer: 5 years
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Prosecutor’s Warning:
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If plea offer rejected, prosecutor will file “habitual offender” papers à mandatory life in prison
A Brief History of Plea Bargaining In 1980 à 81% plea-bargain By 2000 à 94% plea-bargain By 2010 à 97% plea-bargain
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“Criminal jusIce today [in the United States] is for the most part a system of pleas, not a system of trials.”
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- JusIce Anthony Kennedy, Lafler v. Cooper, 2012
§ War on Drugs à “Door in the face” technique
The Plea Process ~ 95% of cases are resolved by guilty pleas
Guilty pleas waive post convicIon review
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No transparency No formal rules
Nego>a>ons typically involve: Fact bargaining
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2. §
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Charge bargaining
Plead to a lesser charge
Sentence bargaining
Plead to a less severe sentence
Guilty plea must be made: Intelligently
1.
Must understand max sentence Rights forfeited
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Right to counsel, jury trial, confront witnesses, privilege against self incriminaIon
Collateral consequences
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Jobs, housing, government benefits, deportaIon
Freely
2.
Cannot be induced by threats, promises
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Except promises to reduce charges & sentence
Yes, you can plead guilty & maintain your innocence
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Alford Plea (e.g., West Memphis Three) No lo contendre
Prosecutorial Discretion Ø
Prosecutors hold almost all of the power
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ABA Standard on Prosecu>on Func>on: §
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“The prosecutor should not bring or seek charges greater. . .than can reasonably be supported with evidence.”
Judges will approve most plea agreements if 1. 2.
The defendant has made a “knowing and voluntary” waiver of right to trial If the plea is founded on some “factual basis.”
Prosecutorial Decision-Making Ø
Prosecutors’ plea bargaining decisions in high level (i.e., felony) drug offenses.
1.
Strength of Evidence §
More putaIve plea offers
Extralegal factors
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Did not affect severity of plea offer Likely due to focus on felony cases
Other legal factors
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Prior arrests & prior prison sentences à more putaIve offers Kutateladze, Lawson, & Andiloro (2015)
The Trial Penalty The price prosecutors make defendants pay for exercising their right to go to trial
Defense Attorney-Decision Making Consider: 1. Likelihood of convicIon 2. PotenIal sentence if convicted 3. Defendant preference regarding plea BUT, defense a8orneys rarely have access to all the evidence
Defendant Decision-Making
Which would you rather? Ø
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Plead guilty and get probaIon OR Go to trial and get 10 years…if convicted
Which would you rather?
Which would you rather? Ø
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Plead guilty and serve 10 years OR Go to trial and get LIFE…if convicted
Which would you rather?
Poverty Ø
“Poverty forces people to live in a permanent now”
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The “marshmallow game.” measure how well children can delay graIficaIon.
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Put one marshmallow on a table Tell child that they can eat the marshmallow OR wait a while and get two marshmallows. Ø
don’t wait as long for larger reward if they know the experimenter is unreliable
Innocence • ~ 10-13 % of cases included false guilty pleas
• Likely underesImaIng the problem
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Growing concern about the “innocence problem” in plea bargaining
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Need to understand the factors that increase risk for false pleas
Perillo, Crozier, Pollick, & Kassin (2014) Phase 1: Modified Russano et al. Chea>ng Paradigm (2005) ParIcipants screened for anxiety All parIcipants innocent of cheaIng
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½ of parIcipants asked to sign confession for cheaIng ½ of parIcipants asked to sign denial of cheaIng
Delay Phase 2: Plea Bargain Session § § § § §
Met with “project supervisor” (actual liIgator) Told professor wants to follow through on academic charges Offered plea deal to avoid academic board hearing Post-session quesIonnaire Extensive debriefing
A New Research Paradigm Round 1 §
Plea Deal: 20 hours of community service in research laboratory
Round 2 § §
Plea Deal: 40 hours of community service with research laboratory 50% chance of convicIon at board hearing
Round 3 – final paradigm § § §
Plea Deal: 40 hours of community service with custodial staff 1 out of every 3 to 4 students convicted at hearing Explicitly took expulsion off the table
Method ManipulaIon: Denial vs. Confession
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ParIcipants § § § § §
36 parIcipants, 72.2% female, M age = 19.97 years 5 “super deniers” in session 1 6 parIcipants did not return for second session 1 parIcipant excluded for suspicion aqer session 1 2 refused to sign either statement in 2nd session
Plea Acceptances by Condition Percentage of Plea Acceptances
90
83.3
80 70 60 50
50
40 30 20 10 0 Denial
χ2 (N = 18) = 1.87, p = .20, Φ = .32
Confess *Early terminations excluded
Conclusions High number of guilty plea decisions across condiIons §
Regardless of confession, innocent parIcipants were willing to plead guilty rather than risk academic integrity board
ParIcipants who had falsely confessed à impacted by situaIon § § §
Four had to be terminated early Rated academic integrity board threat as more influenIal Greater proporIon falsely pled guilty
Support for phenomenology of innocence §
ParIcipants who signed denials thought statements would help them in board hearing
Recommendations? 1)
Seek indictments for charges that yield proporIonate sentences
2)
Offer modest discounts for pleas
3)
Judicial review of pleas
