Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model

Plea bargains are often viewed as contracts made in the “shadow of trial,” as the Government and the defendant negotiate terms based on the charge, associated sentence, and probability of conviction. Focusing upon how conviction probability and delay of punishment influence defendants’ decisions, discounting scholars developed a dual-discounting paradigm to analyze plea-bargaining processes—where defendants typically prefer pleas’ certain, immediate results to trials’ uncertain, delayed results. The researchers used the data they collected during a previous vignette study to assess five hypotheses concerning whether defendants’ self-perceptions and beliefs influence their decisions. Asked to imagine hitting and injuring a child with their car, participants provided their demographic information, evaluated personal feelings of self-blame, and answered binary, forced-choice questions where they had to decide between plea or trial. The researchers obtained participants average Subjective Trial Aversion (“STA”) scores and used linear and multiple regressions to analyze the results. Participants who experienced more self-blame and perceived themselves to be less innocent had higher STA scores than those who experienced less self-blame and perceived themselves to be more innocent, respectively. Though probability of conviction at trial influenced participants’ perception of blame, it did not influence participants’ perception of innocence. There was no relationship between participants’ experience with the criminal justice system and their STA scores. This and other behavioral-economics studies can help practitioners determine how to reform plea bargaining and thus safeguard innocence.

“[P]eople’s perceptions of self-blame and innocence influence their plea-bargain decisions. Specifically, participants who perceived themselves to be innocent were less likely to accept plea bargains, and participants who believed themselves more blameworthy . . . were more likely to accept guilty pleas. The influence of self-blame . . . changes depending on the probability of trial conviction. . . . [W]hen high probabilities of trial conviction are communicated to innocent people with low self-blame, their lower levels of self-blame no longer push them to choose to go to trial.” p. 368