Bargaining in the Shadow of the Law—The Relationship Between Plea Bargaining and Criminal Code Structure: Insights from Psychology: Prosecutorial Passion, Cognitive Bias, and Plea Bargaining

Prosecutors’ decision-making is as relevant to the plea-bargaining process as criminal defendants’ decision-making. Though the stereotypical prosecutor is motivated entirely by his interest in maintaining high conviction rates, prosecutors are much more complex and care about what cases they win and how they win them. Prosecutors often prioritize cases according to the subjective amount of passion they feel for each case; they determine the severity of a defendant’s proposed sentence by comparing that defendant to the other files they have been assigned. Great prosecutorial passion impedes plea negotiation. The prosecutor is reluctant to relinquish power, and the defendant accordingly will not receive the benefit of a bargain. Passion often causes prosecutors to refuse to engage in negotiations entirely or to insist upon significant concessions from the defendant. Prosecutorial passion may also exacerbate various cognitive biases that make settlement less likely. Selective information processing, risk aversion, over-optimism, hindsight bias, anchoring, and the sunk-cost fallacy all affect a prosecutor’s decision. To mitigate the effects of prosecutorial passion, prosecutors’ offices can assign cases strategically, judges can help parties access and assess objective sentencing information, and defense attorneys can seek more-cooperative prosecutors during negotiation.

“Importantly, prosecutorial passion, unlike a case’s likelihood of conviction and likely post-trial sentence, is specific to the individual prosecutor. . . . [T]he passion a prosecutor feels for a case is determined not by an absolute consideration of the severity of the offense, its factual circumstances, the weight of the evidence, or the characteristics of the actors involved, but by a consideration of those factors relative to other files in a prosecutor’s caseload.” p. 189