Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model
-
Lauren Clatch
and
Eugene Borgida
Abstract
Legal scholars have long assumed that plea bargains are contracts negotiated between rational actors who adhere to the dictates of the normative shadow-of-trial model. The two key features that rational actors presumably haggle over in the shadow of trial are the criminal charge (and associated sentence) and the probability of trial conviction. The behavioral economics theory of discounting, however, offers a theoretical foundation for testing the shadow-of-trial model. This article summarizes findings from experimental discounting studies in behavioral economics and psychological science – showing that these paradigms can be successfully applied to the plea-bargaining decision context wherein the likelihood of trial is uncertain and delayed, and the plea bargain is relatively certain and immediate. We suggest that the implications of applying discounting to plea bargaining are three-fold: (1) empirical evidence suggests that the shadow-of-trial model is too narrow; (2) the discounting of non-monetary losses may involve slightly different psychological processes than contexts involving monetary outcomes; and (3) probability of conviction and delay until trial constitute situational features that elicit guilty pleas despite a defendant’s factual innocence.
Acknowledgments
The authors are solely responsible for the research that was conducted and reported herein. The article draws heavily upon Lauren Clatch’s dissertation, completed August 2021. We thank Andrew Sell, Alicia Hofelich Mohr, and Abbey Hammell for providing invaluable support in constructing the survey instrument’s complex display logic.
A.1 Attention and Quality Checks
To detect VPN-use to hide participants’ lack of presence in the United States, the picture of eggplants was used to exclude participants suspected of not being in the United States. The name “aubergine” is used in the UK, Ireland, and France, and the name “brinjal” is used in South Asia. Sixty-three participants called the eggplants brinjal and thus were excluded.
A.2 Reading Comprehension Questions
A.3 Experimental Scenario and Plea-Bargain Decisions
You were driving within the speed limit in a residential area, when you received a text from your friend. You used the voice-activation feature to read the text to you. As you were dictating your response, a child ran in front of your car, chasing a ball. You slammed on your brakes, but your vehicle struck the child, breaking his leg. The police were called and you have been charged with negligent driving resulting in physical injury, a felony.
While it is legal to send texts on your cell phone in hands-free mode, it is not legal to hand-type a text while driving. The cell phone technology can demonstrate that you received and sent text messages at the time of the accident, but it cannot establish whether the texts were hand-typed or voice-activated. However, a Fed-Ex delivery employee was in the vicinity during the accident and remembers your head was down with your gaze in your lap at the time of the incident.
A.4 Instructions
Please read the details of your options below. When you have made a decision, click on the radio button of the option you prefer. When you have clicked on the radio button your answer will be automatically recorded and new options will appear on the screen. Your new options may differ slightly so please review them carefully.
A.5 Background Information
Taking a plea offer is effective immediately, whereas the decision to go to trial results in a delay of the sentence start date because trial does not start until [DELAY] from now, and the trial process could take up to a week.
Based on the evidence, your lawyer thinks you have a [PROBABILITY]% chance you will be found guilty of the felony and be sentenced to 8 months in prison ([1-PROBABILITY]% chance of being found not guilty).
The prosecutor has decided to charge you with a felony, and is asking for a sentence of 8 months in prison if you choose to go to trial. However, the prosecutor is offering a plea deal of a gross misdemeanor, with a jail sentence of 60 days (2 months).
Which option do you choose? Click on your preferred option.
([1-PROBABILITY]% chance of freedom in trial in [DELAY]; PROBABI LITY% chance of being found guilty of a felony and sentenced to 240 days (8 months) in jail
100% certainty of a gross misdemeanor with a sentence of 60 days (2 months) in jail starting today
The text highlighted in blue is present only in Waiting-for-Trial Location’s Jail conditions. The text highlighted in yellow is present only in the Bail conditions, and nothing was present in that space in the Ambiguous conditions.
A.6 Other Materials and Measures
A.7 Subjective Trial Aversion Decision Tree
Each participant saw the top decision (with probability and delay specified instead of “uncertain and delayed”) and then, based on their response, they saw a second decision. If they selected the plea in the first decision, then they saw the second decision connected by the single line, running down to the left. If they selected trial in the first decision, then they saw the second decision connected by two lines, running down to the right. This continued for four decisions per delay, and then reset for the next delay, starting the participant back at the top of the decision tree, cycling through five times (once for each level of Delay until Trial).
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© 2021 Walter de Gruyter GmbH, Berlin/Boston
Articles in the same Issue
- Frontmatter
- Article
- The Impact of Behavioral Economics on the Law: Introduction
- Special Issue Articles
- The Paternalistic Turn in Behavioral Law and Economics: A Critique
- Behavioral Contract Law
- The Limits of Behavioral Economics in Tort Law
- Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model
- Behavioral Economics and Court Decision-Making
- The Role of Bias in Economic Models of Law
- Behavioral Biases and the Law
- The Evolutionary Force of Behavioral Economics in Law
Articles in the same Issue
- Frontmatter
- Article
- The Impact of Behavioral Economics on the Law: Introduction
- Special Issue Articles
- The Paternalistic Turn in Behavioral Law and Economics: A Critique
- Behavioral Contract Law
- The Limits of Behavioral Economics in Tort Law
- Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model
- Behavioral Economics and Court Decision-Making
- The Role of Bias in Economic Models of Law
- Behavioral Biases and the Law
- The Evolutionary Force of Behavioral Economics in Law
