Note: Shining a Light on the Shadow-of-Trial Model: A Bridge Between Discounting and Plea Bargaining

By Lauren Clatch. Full text here.

Plea bargaining is a central feature of the American criminal justice system. Traditional legal scholarship on plea bargaining, influenced by the subdiscipline of law and economics, assumes that criminal defendants simply compare the two criminal sanctions being offered—the criminal charge and sentence in the plea bargain versus the criminal charge and sentence the defendant would receive if convicted at trial. This model may oversimplify plea bargain decision-making by ignoring the effect of probability of conviction and delay until trial, as well as other psychological factors. Within behavioral economics, the research on discounting suggests that probability and delay are important features of decision-making contexts. If discounting is at work in plea bargaining, it would mean that the human preference for immediate and certain options may be tipping the scales such that defendants are cognitively drawn to the immediacy and certainty of plea bargains, as compared to trial, regardless of legally relevant factors such as factual innocence. In line with this hypothesis, this Note presents an experimental paradigm that could be used to establish a more psychologically realistic model of plea bargain decision-making. This Note argues that legal scholars and legislatures will be in a better position to develop an integrated and coherent evaluation of the fairness of plea bargaining once there is experimental evidence demonstrating what factors affect defendants’ plea bargain decisions.