Fairness and the Willingness to Accept Plea Bargain Offers

Fairness-related variables other than culpability impact plea preferences and behaviors. A defendant’s willingness to accept a plea offer is shaped significantly by their perception of the deal’s fairness in light of the likely criminal sanction to be imposed at trial. Defendants tend to reject even relatively-attractive offers that they consider substantively unfair (for example, where the bargain requires conviction of an innocent defendant) or comparatively unfair (where the defendant compares his offer to those made in similar cases). Systematic empirical examination, exoneration data, and anecdotal evidence all indicate that innocent defendants are more risk-seeking than guilty defendants and accordingly much less willing to accept plea offers. Both innocent defendants and guilty defendants uncertain of their culpability often reject offers as if they are truly innocent because they harbor an egocentricity bias that a trial outcome favorable to them is both more fair and more likely. Though rational defendants would consider a comparative evaluation irrelevant to plea choice, real defendants usually conduct a comparative evaluation of the plea offer they receive to offers made in similar cases to measure the fairness of the proposed deal. This piece includes discussion of past studies by Gregory and Bordens and five new studies that the researchers conducted.

“If plea offer data were published, the effect of comparative evaluation might have curtailed the inequality and arbitrariness of the sentences generated by plea bargaining. However, an increase in plea transparency may also exacerbate the effects of egocentric biases, which defendants exhibit with respect to fairness judgements, and are likely to impact comparative evaluations as well, leading defendants to reject offers that unbiased defendants would accept.” p. 114