Skip to main content

Advertisement

SpringerLink
Log in

Is Plea Bargaining in the “Shadow of the Trial” a Mirage?

  • Original Paper
  • Published:
Journal of Quantitative Criminology Aims and scope Submit manuscript

Abstract

It has been well established that a “plea discount” or “trial penalty” exists, such that defendants who plead guilty receive significant sentencing discounts relative to what they would receive if convicted at trial. Theorists argue that the exact value of this plea discount is determined by bargaining “in the shadow of a trial,” meaning that plea decision-making is premised on the perceived probable outcome of a trial. In trials, the strength of the evidence against defendants greatly impacts the probability of conviction. In the present study, we estimate the probability of conviction at the individual level for those who pled guilty. We find that, contrary to the shadow of the trial model, evidentiary factors either do not impact or negatively impact the probability of conviction, which stands in stark contrast to the impact evidence has at trials. These findings suggest that plea bargain decision-making may not occur in the shadow of the trial.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Fig. 1

Similar content being viewed by others

Notes

  1. Expected values are the weighted outcome from an uncertain game. For example, imagine a game where a person is given $1 half the time, and 0 half the time. The expected value of the game is $.50. In the plea situation, the person gets X with certainty, so the expected value of a plea is X.

  2. In behavior decision theory, risk neutral has a specific meaning. A person is risk neutral if they are indifferent between receiving the expected value with certainty or as a result of an uncertain game. A person is risk seeking if they would rather receive a given expected value with uncertainty rather than with certainty. A person is risk averse if they would rather receive the same value with certainty than with uncertainty. The risk neutrality assumption is one of the potential problems identified by Bibas (2004).

  3. In criminology, the plea discount is sometimes called the trial penalty. The trial penalty will be (1/P). So for example, if the probability of conviction is .75, the trial penalty will be 1.33 or 33%, meaning that the trial sentence will be 33% bigger than the plea sentence.

  4. A search of Criminal Justice Abstracts with full text on 7-22-11 found no criminology articles with the phrase “shadow of trial” or “shadow of the trial”. In contrast, a Lexis Nexis search on the same date of law review articles found the phrase in 233 articles. Smith (1986) builds a model that is identical to the shadow of the trial model, but does not use the term. The idea is also implicit in Elder (1989) and Lafree (1985).

  5. This expected correlation between high caseloads and trials and plea discounts is found by Ulmer et al. (2010) in federal conviction data.

  6. For comprehensive reviews of sentencing research, see Spohn (2000) and Baumer (2010).

  7. Although we acknowledge that the judge, and not the prosecutor, is the final arbiter of sentencing, our understanding is that judges rarely stray from the sentence recommendations of prosecutors (e.g., Heumann 1981). Further, the main issue is punishment versus no punishment, not degree of punishment.

  8. Ulmer and Bradley (2006) and Ulmer et al. (2010) also find some differences in the trial penalty by criminal history and crime type.

  9. The coefficient on a private lawyer showing that those with a private lawyer are more likely to get incarcerated is unusual, but could reflect selection bias, simply showing that those facing a greater threat of incarceration are more likely to hire their own lawyer.

  10. We delete 7 cases who are over 4 to deal with skew—these cases are situations where both probabilities are close to zero. Only 3 of these cases would have been included in the models because of missing data on evidence. The models do not appear to be sensitive to the exclusion of these 3 cases—The results in Table 5 column 1 are virtually identical with the excluded cases.

  11. The results from the full model for those who pled guilty have, as noted, a much better fit. The coefficients for evidence are also substantially different than the estimates from Column 1. Three of the four variables are now 0, and one, confession, is positive and significant instead of negative and significant. However, its magnitude is much smaller than the estimate from Column 3. Our conclusion remains the same—evidence does not appear to explain our estimated conviction probability.

References

  • Albonetti CA (1990) Race and the probability of pleading guilty. J Quant Criminol 6:315–334

    Google Scholar 

  • Albonetti CA (1997) Sentencing under the federal sentencing guidelines: an analysis of the effects of defendant characteristics, guilty pleas, and departures, 1991–1992. Law Soc Rev 31:601–634

    Article  Google Scholar 

  • Albonetti CA (1998) The role of gender and departures in the sentencing of defendants convicted of a white-collar offense under the federal sentencing guidelines. In: Ulmer JT (ed) Sociology of crime, law, and deviance, vol 1. JAI Press, Greenwich

    Google Scholar 

  • Ball JD (2006) Is it a prosecutor’s world? Determinants of count bargaining decisions. J Contemp Crim Justice 22:241–260

    Article  Google Scholar 

  • Baumer E (2010) Reassessing and redirecting research on race and sentencing. Working paper

  • Bibas S (2004) Plea bargaining outside the shadow of trial. Harv Law Rev 117:2463–2547

    Article  Google Scholar 

  • Bjerk D (2005) Making the crime fit the penalty: the role of prosecutorial discretion under mandatory minimum sentencing. J Law Econ 48(2):591–627

    Article  Google Scholar 

  • Brereton D, Casper J (1982) Does it pay to plead guilty? Differential sentencing and the functioning of criminal courts. Law and Society Review 16:45–70

    Article  Google Scholar 

  • Bushway S, Forst B (2011) Studying discretion in sentencing. University at Albany Working paper

  • Bushway SD, Piehl AM (2001) Judging judicial discretion: legal factors and racial discrimination in sentencing. Law Soc Rev 35(4):733–764

    Article  Google Scholar 

  • Bushway SD, Piehl AM (2007) The social science contribution to the policy debate surrounding the legal threat to presumptive sentencing guidelines. Criminol Public Policy 6(3):461–482

    Article  Google Scholar 

  • Bynum TS (1982) Prosecutorial discretion and the implementation of a legislative mandate. In: Morash M (ed) Implementing criminal justice policies. Sage, Beverly Hills, pp 47–59

    Google Scholar 

  • Devine DJ, Clayton LD, Dunford BD, Seying R, Pryce J (2001) Jury decision-making: 45 years of empirical research. Psychol Public Policy Law 7:622–727

    Article  Google Scholar 

  • Eisenstein J, Jacob H (1977) Felony justice: an organizational analysis of criminal courts. Little, Brown, Boston

    Google Scholar 

  • Eisenstein J, Fleming R, Nardulli P (1987) The contours of justice: communities and their courts. Little, Brown, Boston

    Google Scholar 

  • Elder HW (1989) Trials and settlements in the criminal courts: an empirical analysis of dispositions and sentencing. J Legal Stud 18(1):191–208

    Article  Google Scholar 

  • Engen RL (2009) Implications of determinate and presumptive sentencing—making research relevant. Criminol Public Policy 8:323–335

    Article  Google Scholar 

  • Engen RL, Gainey RR (2000) Modeling the effects of legally relevant and extralegal factors under sentencing guidelines: the rules have changed. Criminology 38:1207–1229

    Article  Google Scholar 

  • Farrell J (2003) Mandatory minimum firearm penalties: a source of sentencing disparity? Justice Res Policy 5:95–115

    Article  Google Scholar 

  • Forst B (2002) Prosecution. In: Joan P, Wilson JQ (eds) Crime, 3rd edn. ICS Press, Oakland, CA, pp 509–536

    Google Scholar 

  • Frenzel ED, Ball JD (2007) Effects of individual characteristics on plea negotiations under sentencing guidelines. J Ethn Crim Justice 5:59–82

    Article  Google Scholar 

  • Garvey SP, Hannaford-Agor P, Hans VP, Mott NL, Munsterman GT, Wells MT (2004) Juror first votes in criminal trials. J Empir Legal Stud 1:371–399

    Article  Google Scholar 

  • Heller KJ (2006) The cognitive psychology of circumstantial evidence. Mich Law Rev 105:241–305

    Google Scholar 

  • Heumann M (1981) Plea bargaining: the experiences of prosecutors, judges, and defense attorneys. University of Chicago Press, Chicago

    Google Scholar 

  • Hofer PJ (2000) Federal sentencing for violent and drug trafficking crimes involving firearms: recent changes and prospects for improvement. Am Crim Law Rev 37:41–73

    Google Scholar 

  • Johnson B (2003) Racial and ethnic disparities in sentencing departures across modes of conviction. Criminology 41:449–490

    Article  Google Scholar 

  • Kalven H, Zeisel H (1966) The American jury. University of Chicago Press, Chicago

    Google Scholar 

  • Kassin SM, Neumann K (1997) On the power of confession evidence: an experimental test of the fundamental difference hypothesis. Law Hum Behav 21:469–484

    Article  Google Scholar 

  • Kellough G, Wortley S (2002) Remand for plea: bail decisions and plea bargaining as commensurate decisions. Br J Criminol 42:186–210

    Article  Google Scholar 

  • Kessler DP, Piehl AM (1998) The role of discretion in the criminal justice system. J Law Econ Organ 14:256–276

    Article  Google Scholar 

  • King N, Soule D, Steen S, Weidner R (2005) When process affects punishment: differences in sentences after guilty plea, bench trial, and jury trial in five guideline states. Columbia Law Rev 105:960–1009

    Google Scholar 

  • Kramer J, Ulmer JT (1996) Sentencing disparity and departure from the guidelines. Justice Q 13:81–106

    Article  Google Scholar 

  • Kramer J, Ulmer JT (2002) Downward departures for serious violent offenders: local court ‘corrections’ to Pennsylvania’s Sentencing Guidelines. Criminology 40(4):601–636

    Article  Google Scholar 

  • Kramer GM, Wolbransky M, Heilbrun K (2007) Plea bargaining recommendations by criminal defense attorneys: evidence strength, potential sentence, and defendant preference. Behav Sci Law 25:573–585

    Article  Google Scholar 

  • LaFree GD (1985) Adversarial and non-adversarial justice: a Comparison of guilty pleas and trials. Criminology 23:289–312

    Article  Google Scholar 

  • Landes W (1971) An economic analysis of the courts. J Labor Econ 14(1):61–107

    Google Scholar 

  • Loftin C, Heumann M, McDowall D (1983) Mandatory sentencing and firearms violence: evaluating an alternative to gun control. Law Soc Rev 17:287–318

    Article  Google Scholar 

  • McAllister HA, Bregman NJ (1986) Plea bargaining by prosecutors and defense attorneys: a decision theory approach. J Appl Psychol 71:686–690

    Article  Google Scholar 

  • McCormick CT (1983) Handbook of the law of evidence, 2nd edn. West, St Paul

    Google Scholar 

  • Miethe TD, Moore CA (1986) Racial differences in criminal processing: the consequences of model selection on conclusions about differential treatment. Sociol Q 27:217–237

    Article  Google Scholar 

  • Miller HS, McDonald WF, Cramer JA (1980) Plea bargaining in the United States. United States Department of Justice, National Institute of Justice, Washington

    Google Scholar 

  • Mnookin RH, Kornhauser L (1979) Bargaining in the shadow of the law: the case of divorce. Yale Law J 88(5):950–997

    Article  Google Scholar 

  • Mustard DB (2001) Racial, ethnic and gender disparities in sentencing: evidence from the US Federal Courts. J Law Econ 44:285–314

    Article  Google Scholar 

  • Nagel SS, Neef MG (1979) Decision theory and the legal process. Lexington, Lexington

    Google Scholar 

  • Nardulli P, Eisenstein J, Fleming R (1988) The tenor of justice: criminal courts and the guilty plea process. University of Illinois Press, Urbana

    Google Scholar 

  • Niedermeier KE, Kerr NL, Messe LA (1999) Jurors’ use of naked statistical evidence: exploring bases and implications of the Wells Effect. J Pers Soc Psychol 76:533–542

    Article  Google Scholar 

  • Ostrom B, Ostrom C Jr, Hanson R, Kleiman M (2007) Trial courts as organizations. Temple University Press, Philadelphia

    Google Scholar 

  • Piehl A, Bushway S (2007) Measuring and explaining charge bargaining. J Quant Criminol 23(2):105–125

    Article  Google Scholar 

  • Rhodes W (1979) Plea bargaining: its effect on sentencing and convictions in the District of Columbia. J Crim Law Criminol 70:360–375

    Article  Google Scholar 

  • Smith DA (1986) The plea bargain controversy. J Crim Law Criminol 77:949–968

    Article  Google Scholar 

  • Spohn C (2000) Thirty years of sentencing reform: The quest for a racially neutral sentencing process. In: National Institute of Justice: criminal justice 2000. National Institute of Justice, Washington

  • Ulmer JT (1997) Social worlds of sentencing: court communities under sentencing guidelines. State University of New York Press, Albany

    Google Scholar 

  • Ulmer JT, Bradley MS (2006) Variation in trial penalties among serious violent offenses. Criminology 44(3):631–670

    Article  Google Scholar 

  • Ulmer JT, Kurlychek M, Kramer J (2007) Prosecutorial discretion and the imposition of mandatory minimums. J Res Crime Delinquency 44(4):427–458

    Article  Google Scholar 

  • Ulmer JT, Eisenstein J, Johnson BD (2010) Trial penalties in federal sentencing: extra‐guidelines factors and district variation. Justice Q 27(4):560–592

    Article  Google Scholar 

  • Wells GL (1992) Naked statistical evidence of liability: is subjective probability enough? J Pers Soc Psychol 62:739–752

    Article  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. School of Criminal Justice, University at Albany, State University of New York, Albany, NY, USA

    Shawn D. Bushway & Allison D. Redlich

Authors
  1. Shawn D. Bushway
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Allison D. Redlich
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Shawn D. Bushway.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Bushway, S.D., Redlich, A.D. Is Plea Bargaining in the “Shadow of the Trial” a Mirage?. J Quant Criminol 28, 437–454 (2012). https://doi.org/10.1007/s10940-011-9147-5

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10940-011-9147-5

Keywords

Search

Navigation