Logical but incompetent plea decisions: A new approach to plea bargaining grounded in cognitive theory.

Abstract

Although much research considers the cognitive processes involved in legal decision making of jurors and judges, decisions to accept or reject plea bargains have received far less attention. We examine decisions in plea scenarios to test predictions of Fuzzy-Trace Theory regarding how cognitive processing style (specifically, greater reliance on gist or verbatim representations) affects plea decisions and how this could lead to suboptimal decision making, especially among defendants who are young adults. Results support Fuzzy-Trace Theory’s predictions by showing that the type of mental representation relied on by an individual (gist or verbatim) predicts plea bargain decisions—with those relying on gist being more influenced by categorical meaning-based distinctions, such as being guilty versus innocent or getting a felony versus misdemeanor. Importantly, results suggest that differences between the 2 groups are not caused by a difference in values but by the fact that individuals relying on verbatim representations are making decisions that do not reflect their underlying values, due to a “hyper-rational” reasoning process. These results reveal a new threat to competent plea decisions—a logical reasoning process that is arguably not fully competent—which has implications for the current plea bargaining system.

Disentangling the effects of plea discount and potential trial sentence on decisions to plead guilty

“…While results from a single, tightly controlled study must be interpreted with caution, it is encouraging that by separating and fully crossing the effects of discount and potential trial sentence, we appear to have gained additional insight into how these variables might be exerting their effects on plea decisions (at least under the conditions of out experiment). Our data on the effect of plea discount are in line with existing research on categorically different, substantially reduced, or lenient offers (Bordens, ; Helm & Reyna, ; Russano, Meissner, Narchet, & Kassin, ) and have important implications for wrongful conviction research – for example, Redlich, Yan, Norris, and Bushway () recently reviewed 500 district attorney case files in New York State and found that individuals who deny their charges tend to receive the most steeply discounted plea offers. Moreover, no state legislature, save for New York, has placed any explicit restriction on sentence differentials in plea offers (Zottoli et al ., ).…”

Limitations on the ability to negotiate justice: attorney perspectives on guilt, innocence, and legal advice in the current plea system

“…Scholars supporting plea bargaining have argued that innocent defendants would be unlikely to find plea offers attractive, going as far as to describe the problem of innocent defendants pleading guilty as “barely a perceptible theoretical ripple” when compared with other costs in the plea-bargaining system (Easterbrook, 1992; Schulhofer, 1992). However, accumulating research suggests that innocent defendants might be pleading guilty fairly frequently (for example Dervan & Edkins, 2013; Grisso et al, 2003; Helm & Reyna, 2017; Tor, Gazal-Ayal, & Garcia, 2010). Our results support this accumulating research.…”

“…In terms of deciding which option (plea or trial) is preferable to a defendant, empirical research has confirmed that risk preferences (Bjerk, 2008), probabilities of conviction (Tor, Gazal-Ayal, & Garcia, 2010), and potential sentences (Bordens & Bassett, 1985) influence defendant decisions. However, research also suggests that defendants are influenced by whether they are guilty or innocent (Helm & Reyna, 2017; Tor at al., 2010), pressure from the prosecutor, expediency, and acquiescence (including acquiescing with attorney advice) (Bordens & Bassett, 1985). This makes the plea decision a complex one that is influenced by defendant psychology and attorney practice, as well as by the options involved (Burke, 2007; Covey, 2007; Helm & Reyna, 2017).…”

“…However, research also suggests that defendants are influenced by whether they are guilty or innocent (Helm & Reyna, 2017; Tor at al., 2010), pressure from the prosecutor, expediency, and acquiescence (including acquiescing with attorney advice) (Bordens & Bassett, 1985). This makes the plea decision a complex one that is influenced by defendant psychology and attorney practice, as well as by the options involved (Burke, 2007; Covey, 2007; Helm & Reyna, 2017). This also means that guilt or innocence can become a secondary concern in the decision-making process for both defendants and attorneys, and that innocent defendants plead guilty.…”

“…This rationale has been used to justify plea bargaining through the idea that a defendant can get a reduced sentence by confessing to something that they have done (Garrett, 2016). However, academics and legal commentators have noted that characteristics of current plea-bargaining practice mean that it is not just operating in a way that allows defendants to get a reduced sentence by confessing to something that they have done, but also to encourage or even coerce innocent defendants into pleading guilty (see, for example, Blume & Helm, 2014; Caldwell, 2011; Dervan & Edkins, 2013; Helm & Reyna, 2017; Zottoli, Daftary-Kapur, Winters, & Hogan, 2016).…”