Wednesday, July 18, 2018

Special Issue of Psychology, Public Policy and Law re Guilty Pleas

Psychology, Public Policy and Law has recently released a special issue on guilty pleas.  The collection of articles, edited by Miko Wilford and Allison Redlich, is an excellent read and examines plea bargaining from various perspectives.

My latest article entitled Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty is contained in the special issue.  This piece considers the impact of innocence, collateral consequences, and pretrial detention on plea decisions.  Full results from the study are contained in the article, but I'll note here one particularly troubling finding: the rate of innocent individuals who plead guilty tripled in our pretrial detention scenarios

Below are abstracts and links to each article in the collection. 

Special Issue of Psychology, Public Policy and Law: Guilty Pleas
Edited by Miko M. Wilford and Allison D. Redlich

Deciphering the Guilty Plea: Where Research Can Inform Policy
Miko M. Wilford and Allison D. Redlich


Introduces this special section of Psychology, Public Policy, and Law on the topic of guilty pleas. In this special section the editors have assembled six rigorous research and analytical papers that deepen the understanding of guilty pleas and introduce a number of important policy implications. Together, these studies examined the impact of multiple variables on the decision to plead guilty. 

The Influence of Confessions on Guilty Pleas and Plea Discounts
Allison D. Redlich, Shi Yan, Robert J. Norris, & Shawn Bushway


The influence on confession evidence in trials is quite strong; triers of fact who hear confession evidence find these self-incriminating statements hard to ignore and in turn, vote to convict more often. However, most cases do not see the inside of a courtroom, but rather are resolved via plea bargains. In the present study, we examined how confessions, whether partial or full, influence guilty plea rates and plea discounts (the difference between sentence received at trial if convicted and sentence received as part of the plea). We coded more than 500 district attorney case files for defendant statement type (i.e., not questioned by police, questioned but denied guilt, questioned and partially confessed, questioned and fully confessed), case disposition (guilty plea, trial, dismissal), and other pertinent information (e.g., initial charges, perceived strength of evidence). We found that whereas those who denied guilt were the least likely to plead guilty, when they did plead, they enjoyed the largest plea discounts. In addition, partial and full confessors were found to be equally likely to plead guilty (both at near-ceiling levels), but partial confessors received the smallest plea discounts by far. Our findings have implications for theories of remorse and punishment, and plea decision-making. 

Bluffed by the Dealer: Distinguishing False Pleas from False Confessions 
Miko M. Wilford & Gary L. Wells


The United States convicts over 1 million people of felonies each year without affording the resources of a trial. Instead, these convictions are attained by guilty plea. The current research investigated the similarities and differences that would emerge between pleas and confessions when relying on a paradigm originally developed for confession research. The study employed a modified cheating paradigm with a 2 (innocent or guilty) × 2 (plea or confession) × 2 (evidence-bluff or no-bluff) between-participants design. We hypothesized that the evidence-bluff manipulation, which involves telling participants that there is potentially diagnostic evidence that has yet to be tested, would increase false confessions (Perillo & Kassin, 2011), but decrease false guilty pleas. The bluff manipulation should strengthen the phenomenology of innocence, which will lead the innocent to believe their confession poses no threat, but that a guilty plea would eliminate their hope of being found innocent. Although the hypothesized interaction between the evidence-bluff and plea-confession conditions on acceptance outcomes did not materialize, other evidence emerged indicating that pleas and confessions might involve different underlying processes. Specifically, innocent participants gave different reasons for refusing to sign a plea statement than they did for refusing to sign a confession statement. Similarly, the plea and confession conditions prompted guilty participants to provide significantly different reasons for agreeing to sign the statement. In conclusion, the current research provides some support for the psychological differences between pleas and confessions, while also highlighting the need for new paradigms that are specifically designed to study plea decision making.

Attorney Perspectives on Juvenile and Adult Clients’ Competence to Plead Guilty
Amanda NeMoyer, Sharon Kelley, Heather Zelle, & Naomi E.S. Goldstein


An overwhelming majority of juvenile and criminal cases result in admission or guilty plea. Standards of competence apply at this stage of the proceedings, so the issue can be raised if someone—usually a defense attorney—believes the defendant lacks competence to plead. It is unclear how often defense attorneys question their clients’ competence to plead guilty and what factors lead to such decisions. This study surveyed defense attorneys about their experiences raising this issue in juvenile and criminal court and investigated factors that made them raise this issue and made them decide against formally questioning competence, despite suspecting their clients lacked requisite abilities. Most of the 199 responding attorneys reported having raised a competence issue at this stage, with more attorneys indicating they had done so at least once for an adult client than for a juvenile client. However, when asked about the number of times they raised this issue, attorneys reported doing so more frequently for juvenile clients than for adult clients. Client cognitive deficits, inadequate ability to assist counsel, and mental illness were reported to drive decisions to question competency in both courts. Attorneys endorsed choosing not to raise this issue because of concern about the low legal threshold for competence and that consequences would negatively affect their clients. Results of this study suggest a professional quandary for defense attorneys—who receive little guidance in this area—and add weight to the pressing need for meaningful examination of how the plea process works in principle and in practice.

Too Young to Plead? Risk, Rationality, and Plea Bargaining’s Innocence Problem in Adolescents
Rebecca K. Helm, Valerie F. Reyna, Allison A. Franz, & Rachel Z. Novick


The overwhelming majority of both adult and adolescent convictions occur as the result of guilty pleas rather than trial. This means that convictions are often the result of decisions made by defendants rather than jurors. It is therefore important to study decision making in defendants to ensure convictions are occurring in a fair and principled way. Research suggests that the current plea-bargaining system is leading innocent defendants to systematically plead guilty to crimes that they did not commit, and that this may be more widespread in adolescents than adults. The current study uses fuzzy-trace theory to develop and test an explanation of why adolescents are more likely than adults to plead guilty to crimes they did not commit. The authors show that, as predicted, adolescents are more likely than adults to plead guilty when they are innocent, and that this is due to developmental differences in the use of gist representations in decision making whereby values are unlikely to be retrieved and applied when making decisions. These results have implications for postconviction claims of innocence by adolescents, procedural rules governing adolescent plea bargaining, and the practice of adolescent plea bargaining more generally. 

How Defense Attorneys Consult with Juvenile Clients about Plea Bargains
Erika N. Fountain & Jennifer L. Woolard


Despite recent research attention, a lack of information still plagues the most common conviction process in the United States: the plea bargain. Further, even less is known about how juvenile defendants make plea bargain decisions. Juvenile plea bargaining is unique due to juveniles being considered independent minors while simultaneously being held to adult competency standards in court. Unfortunately, juvenile defendants are less likely than adults to have the necessary capacities for adjudicative competence. Given defense attorneys’ role in the plea bargain process, it is possible that they may be able to increase their clients’ knowledge and legal understanding. Additionally, defense attorneys may be able to facilitate meaningful client participation and better decision making. The current study takes an exploratory, qualitative approach to examine how defense attorneys prepare juveniles to make informed and autonomous plea bargain decisions in juvenile court. Data from interviews with juvenile defense attorneys suggest that juveniles are subjected to a quick decision-making process and tend to base their decisions on immediate gratification. Attorneys reported using one of three specific consultation strategies with their young clients. Ultimately, plea bargain discussions were described as occurring quickly, focused on the immediate case facts and outcomes, with less time and attention reserved for discussions about rights, or long-term, collateral consequences.

Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty
Vanessa A. Edkins & Lucian E. Dervan


With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether or not informing individuals of collateral consequences would alter their decisions to plead. Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences—especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention—would not have the desired effect of exerting a strong influence on decisions to plead. Across two studies—the first, an exploratory within-subjects design; the second, a more controlled between-subjects design—we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved. We also saw that, in general, participants were not opposed to the imposition of most collateral consequences. Future directions for plea bargaining research are discussed. 

NACDL Releases Report on the Trial Penalty

The NACDL released an important report last week detailing the impact of the trial penalty, which is the difference between the sentence a defendant receives in return for pleading guilty and the often much larger sentence he or she receives in return for exercising his or her constitutional right to trial. 

From the NACDL press release:
The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems. The
 Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.
You can access the entire report here.