Plea Bargaining: A Test of Dual Discounting Preferences for Non-Monetary Losses.

When making decisions, humans tend to select choices that provide the most certain and immediate results as opposed to more uncertain and delayed results. This concept known as “discounting” has primarily been studied in the context of monetary losses, but this article explores the interplay between discounting and the plea-bargaining process through three related studies. Study 1 scaled criminal charges, sentences, and charge-sentence combinations for the purpose of testing the effect of delay and probability on the plea decision in studies 2 and 3. Study 2 focused on the effects of delay until trial (“DUT”), probability of trial conviction (“PTC”), and post-conviction trial sentence (“TS”) in the plea bargaining context. The results indicated that PTC, DUT, and TS all impact the decision to plea in at least one two-way interaction between the predictors. Study 3 found that plea decisions regarding loss of freedom differ from decisions regarding monetary losses in at least two ways: (1) unless the decision-maker is in jail, the plea decision is not seriously impacted by delay; and (2) when probability and delay do affect the plea decision, individuals preferred to take the plea (the immediate option) over a trial (the delayed option). Overall, the three studies revealed that the plea decision is influenced by probability in the same manner as monetary decisions: as the likelihood of future loss of freedom at trial increases, the more likely an individual is to enter into harsher pleas to avoid trial.

“[P]eople preferred the immediate option (a plea) when trial was associated with longer delays. This may partly have to do with uncertainty over whether they would receive credit for time served. The other part, however, seems to be a sense that waiting for trial in jail when likely to win at trial (making credit for time served moot) feels aversive enough to be worthy of a sense of dread.” p. 1054