FABBS Doctoral Dissertation Research Excellence Award

Lauren Clatch, University of Minnesota, Department of Psychology

Bargaining for Freedom: A Person-by-Situation Approach to Studying Plea-Bargain Decision-Making

Lauren Clatch, University of Minnesota, Department of Psychology

Project Abstract 

Discounting scholars have studied decisions about monetary rewards, or gains,  and found that the probability and delay of the receipt of those gains influence  their subjective value. Plea-bargain decisions inherently contain the features  of probability and delay in the decision context: Trial’s outcome is uncertain  while the plea offer’s outcome is certain, and trial is delayed while the plea  offer is relatively immediate. This dissertation’s four studies apply discounting  paradigms to plea-bargain decision-making and find that probability of trial  conviction and delay until trial influence decision making. Additionally,  Studies 3 and 4 highlight how other situational features, Factual Innocence  and Attorney Advice, influence plea decisions. Overall, the person-by-situation approach from personality and social psychology adopted by this dissertation offers discounting scholars a richer understanding of the personal and  situational factors that can influence decision-making.

Introduction/Background 

In a plea-bargain decision, a person charged with a crime has the choice  whether to accept an offer made by the prosecutor to accept guilt, forego a  criminal trial, and go straight to the sentencing phase in which the offered  sentence is the presumptive sentence. Most people accept that offer. But is that  because they are guilty and the evidence is stacked up against them? Or are  there other features of the plea-bargain choice context that influence that  decision? 

I use discounting as a theoretical starting point to understand plea  bargain choices because discounting researchers study binary choices between  one option that is uncertain and delayed and a second option that is certain  and immediate. In the plea-bargaining setting, trial is uncertain and delayed,  and the plea bargain is relatively certain and immediate. I was drawn to the  potential utility of discounting paradigms to explain plea-bargain decision making because the general psychological patterns described by discounting  research might help explain why so many people accept plea bargains. Specifically, discounting research has shown that, in general, people prefer  certain and immediate outcomes (for review see Frederick, Loewenstein, & O’Donoghue, 2002), which if applied to a plea-bargaining setting could show why people prefer the plea offer over trial. 

Certain features of monetary-decision contexts are especially important  to predict behavior: probability of the outcome, delay/time of occurrence, and  commodity valence (gains vs. losses, termed the “sign effect”). Especially of  interest to social psychologists, commodity type seems to matter, too, as 

revealed by research in the last decade. In the context of losses, Harris (2012)  found descriptively different patterns of behavior when the commodity was lost  money compared to non-monetary losses. In particular, with monetary  commodities, the median participant chose to put off losses as long as possible  and chose to experience gains without any delay. A non-monetary gain of receiving sincere praise from someone you respect showed an overwhelming  choice for immediate praise, but the non-monetary loss of a bee sting showed  bi-modality at the poles with many people choosing to get the losses over with  and many others choosing to put off the loss as long as possible. 

The traditional way of assessing discounting involves a complex series of questions (called the amount-adjusting titration procedure) to triangulate the  subjective value that people assign to an offered outcome (deduced from an  indifference point). In particular, experimentalists ask participants a series of  binary, forced-choice questions, varying a feature of the choice context within subjects (e.g., delay or probability) to see how it affects decisions. In each 

within-subjects condition, the amount of money (or here, the sentence  associated with the plea or trial) is varied until an indifference point could be  deduced—which is a point where a person is equally likely to choose the two  outcomes.  

Using discounting’s methodological paradigm, this dissertation’s series  of four studies provides an opportunity to examine more deeply a recent finding  that discounting occurs in the plea-bargaining context in similar ways as in  monetary-decision contexts (Clatch & Borgida, 2021). 

Methods

The key dependent variable in this research, Trial Aversion, was  measured using the amount-adjusting titration procedure. The higher the  indifference point, the more trial aversion a participant is exhibiting. Simply  put, the higher the sentence a person is willing to accept through a plea deal,  the more trial aversion they are evincing. 

All four online surveys contained a vignette describing an unfortunate  hypothetical situation in which the participant is asked to imagine driving  down a residential road while texting using voice activation when they hit and  injure a child. Participants then are instructed that they are being  (hypothetically) charged with a criminal offense because it is illegal to use your  hands to text while driving (i.e., they are actually innocent); then they answer  a series of binary, forced-choice questions in which they have to decide whether  to accept a plea bargain or to go to trial. Last, participants completed a number 

of individual difference measures (e.g., an impulsivity scale), open-ended  questions (e.g., why do most people accept pleas?), and demographic questions  (e.g., gender). 

All four studies had mixed-factor designs with some variables  manipulated between-subjects and others manipulated within-subjects. All  four studies manipulated Probability of Trial Conviction (e.g., 5%, 50%, 95%)  and Delay until Trial (e.g., 1 day, 1 week, 1 month). Studies 1, 2, and 3 

manipulated Waiting-for-Trial Location (while in Jail vs. out on Bail). Study 2  included a methodological manipulation to determine whether there are  differences between single-item measurements of the key dependent variable  and the traditional titration procedures (that use a series of binary questions). 

Studies 3 and 4 manipulated participants’ Factual Innocence by  randomly assigning them to read a vignette where they texted while using  voice activation (Innocent) or texted while using their hands (Guilty). Study 4  manipulated Attorney Advice (Plea Advice vs. Trial Advice) such that  participants received advice about whether they should go to trial or accept a  guilty plea.

All four studies used online participant pools. Study 2 obtained a  nationally-representative sample based on the 2019 U.S. Census data through  Lucid Marketplace.1 Studies 3 and 4 obtained nationally-representative  samples based on gender and age (using the same 2019 Census data) and  oversampled Black Americans2 to provide more statistical power for race sub group comparisons, especially the one most relevant in criminal justice  research. People of color, especially black men, have long been overrepresented  in the U.S. criminal justice system (Spohn, 2011). 

Results

Simple linear mixed-effects regressions and mixed-effects multiple  regressions were conducted to test the effects of experimental and individual difference variables on plea decisions. Study 1 demonstrated that participants’  impulsivity influenced their plea bargain decisions by changing their  perceptions of probability of trial conviction—that is, participants with lower  impulsivity were especially sensitive to the chances of losing at trial and  accordingly accepted more pleas. This finding was consistent across all four studies. All three studies that manipulated Probability, Delay, and Pretrial  Detention found the three-way interaction first presented by Clatch and  Borgida (2021) such that likelihood of losing at trial combined with pretrial  detention and a delay until trial induced more plea acceptance. All three  studies that measured self-blame and perceptions of innocence demonstrated  that participants that blamed themselves for the car accident or injuring the  child or perceived themselves to be less innocent for those acts (regardless of  their factual innocence) were more likely to accept a plea. 

Study 2 demonstrated that the traditional method of measuring  Subjective Value in discounting studies (i.e., titration procedures involving a  series of binary questions) presents a more reliable measurement of  participant preferences than single-item measurement.  Studies 3 and 4 demonstrated a nuanced influence of factual  innocence/guilt. Although innocents accepted fewer deals on average than  those who were guilty, the similarity of the groups’ plea decisions was striking  and challenges current assumptions that innocents accept guilty pleas only “at  the margins.” For example, nearly one third of innocent participants (29%)  accepted the plea bargain no matter what deal they were offered (i.e., even a  criminal sentence that was just three days less than their trial sentence), and  being guilty only increased that percentage 11 points, with 41% of guilty  participants accepting the plea every time. At the other end, 12% of guilty  participants exercised their trial right every time a plea bargain was offered,  but this rate only increased 4% in innocent participants with 16% of them  exercising their trial right every time. 

Studies 3 and 4 also, because of their oversample of Black Americans,  found that Black participants were more likely to go to trial because they were  less sensitive to their probability of losing at trial than White participants. 

Study 4 demonstrated that Attorney Advice to accept a plea or go to trial  did not (as a main effect) change participants’ plea decisions, but an interaction  with Factual Innocence was found. In particular, innocent participants seemed  to be less malleable than their counterparts such that guilty participants were  very responsive to attorney advice. 

Discussion

This series of studies informs both discounting theory and normative  legal theory on plea bargaining. In particular, discounting theory has relied  primarily on studies examining monetary decision-making, and the findings in  the non-monetary context of plea-bargain decisions wherein a person’s freedom  is at stake suggest both commonalities with and differences between the two  decision-making processes. Uncertain outcomes are avoided relative to certain  outcomes regardless of whether it is money or freedom being decided about.  But delayed outcomes are not uniformly avoided relative to immediate  outcomes. In the monetary decision context, people prefer immediacy, but  when deciding about their freedom people only prefer immediacy when they  are detained pretrial, suggesting that in non-monetary decision contexts,  situational factors may qualify what seem to be robust findings in monetary  contexts. 

Traditional legal theories about plea bargaining suggests that  probability of trial conviction and the length of the sentence are the only  features that are relevant to decision-making (Bibas, 2004; Easterbrook, 2013).  However, this series of studies confirms that not only do other situational  features like pretrial detention and delay until trial influence decisions, but also  person-specific variables like decision-maker race, self-blame, and perceptions  of innocence influence plea decisions. Accordingly, this project suggests that  the normative models of plea-bargain decision-making are much too narrow  and should be expanded to accurately represent the complexity of the decision making process. 

This body of work challenges the (hopeful and) intuitive assumption that  people’s guilt status is the most important factor in their plea-bargain decision making process. Instead, contextual variables such as how likely it is that they  will lose at trial (as interpreted by the prosecutor and defense attorney), how  long they would have to wait until trial (determined by judges’ and attorneys’ schedules), and whether they are detained pretrial all influence the decisions  regardless of guilty status. 

This project’s method of measuring Trial Aversion also not only reveals  how likely it is for a person to take a plea but also (because length of a prison  sentence in days is a continuous variable) how harsh of a plea they would be  willing to accept. So applying the discounting paradigm to this setting and  leveraging the conceptual power of the indifference point, it becomes clear that  people are willing to trade away their Constitutional right to a criminal trial  even when they are innocent for a marginally shorter sentence and some  certainty about the immediate outcome. These factors conspire with people’s  self-blame and self-perceptions of guilt to induce pleas in one third of the  factually innocent participants—a plea deal that was just three days less than  their sentence would purportedly be if they lost at trial. 

Impact Statement

“Plea bargaining is a defining, if not the defining, feature of the present  federal criminal justice system” (Brown & Bunnell, 2006). Moreover, William  Blackstone coined the well-known maxim: “[I]t is better that ten guilty persons  escape, than one innocent suffer” (1826, p. 358). Although the real-world ratio  of escaped guilty persons and wrongly convicted innocents is a known  unknown, there is evidence that innocents are wrongly convicted through their  own decision to accept a plea bargain: 38 of the Innocence Project’s 351 people  exonerated by DNA evidence accepted a plea bargain (Innocence Project, 2017).  

This dissertation project demonstrates that a variety of psychological  processes implicated in the plea-bargaining decision-making process— including probability discounting and self-perceptions of guilt and blame— affect both innocent and guilty defendants. Future structural or procedural  changes to the plea-bargaining system may be able to encourage more innocent  defendants to go to trial rather than accept a false guilty plea. Pretrial  detention appears to be a prime candidate: reducing the number of people in  pretrial detention will make the (inherently delayed) trial option more  appealing.