Freedom Now or Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty

Criminal defendants face numerous collateral consequences—non-penal sanctions including eviction from public housing, loss of voting rights and professional licenses, and denials of federal aid—that make their reintegration into society difficult. Most of these consequences need not be communicated before entering a plea. Under prospect theory, defendants are more likely to see their options in terms of gains and losses relative to their current state and thus give more consideration to enticing bargains promising immediate relief from lengthy conviction than potential freedom from distal, future concerns of collateral consequences. Two similar studies asking participants to navigate various conditioned scenarios demonstrated that collateral consequences did not have as significant of an impact on participants’ pleading decisions as actual guilt and pretrial detention. Participants assigned the condition of “guilty” or “pretrial detention” were much more likely to choose a plea deal, preferring a more-certain outcome relative to their current status. Importantly, when “pre-trial detention” was added, the rate of false pleas more than doubled. In contrast, knowledge of collateral consequences did not alter or predict decisions to plead. Even though many participants indicated that concerns about the future impacted their decisions, immediate gains dominated because they were “too hard to ignore.”

“[W]e believe that when the immediate rewards of accepting a plea deal are too large, these future ramifications are given too little weight; that collateral consequences can only be rationally considered when they are not overshadowed by certain and immediate enticements.” p. 206