Law and Economics of Plea-Bargaining

Law and Economics of Plea-Bargaining Nuno Garoupa Universidade Nova de Lisboa & CEPR Paris 2005

Basic Idea • Law and Economics of Plea-Bargaining: It is an efficient instrument of criminal procedure because it reduces enforcement costs (for both parties) and allows the prosecutor to concentrate on more meritorious cases. Paris 2005

Basic Idea • Plea bargains are the criminal counterpart of civil settlements which Law and Economics has largely supported. Paris 2005

Yet… • Plea-Bargaining is highly controversial in common law countries, including the US and the UK [England & Wales]; • Plea-Bargaining has been transplanted to civil law (France, Italy, Poland, Argentina) under severe criticism by traditional doctrinal approaches and apparently without a major empirical success; • Informal versions have been observed in Germany, the Netherlands and elsewhere (includes summary procedures for those who do not contest guilt; unconditional and conditional dismissals; confession of guilt to get a reduction in the sentence, warnings and reprimands). Paris 2005

Reality • 95% of all convictions in the US are secured with a guilty plea; • Widely used in the UK (around 90%); • 8% of all convictions in Italy. Paris 2005

This paper • History of Plea-Bargaining: why? • Institutional details of Plea-Bargaining: what we mean by plea-bargaining. • Economics of Plea-Bargaining: state of the art. • Arguments against Plea-Bargaining. • Important differences between plea-bargaining across countries. • Sketch of a more comprehensive economic approach • Conclusion • References Paris 2005

History of Plea-Bargaining • Historical justifications are obscure. • Reasons: • Bypass jury trials (US, England and Wales); • Why plea bargaining and not bench trials? • Workload (Italy, France, US, England and Wales); • Empower prosecution (France); • Against whom? Why? • Jury  back to bypass jury trials; • Judges  why not use stricter sentencing guidelines • Reduce costs for defendants; • Why not reform criminal procedure? • Lawyer domination of legal proceedings (common law countries) Paris 2005

The case of the US • Dynamics in the 19th and early 20th century: All cases go to trial, explicit bargaining, implicit bargaining. • Introduction and existence of trial penalty by the end of 19th century. Paris 2005

The case of the US • Why did judges allow it? • 1866 changes on rules of evidence to give defendants more rights at trial; • backlog of civil justice; • Rehabilitation approach to criminal law. Paris 2005

The case of the US • Plea bargaining was one of several methods employed by Anglo-American administrators to dispose of criminal cases without juries. When compared with other modes to bypass trial by jury (e.g., bench trial), it is less distinctive and less American. Paris 2005

The case of England & Wales • Formally introduced under the “plea before venue system” [Criminal Procedure and Investigations Act 1996]; • Judicial precedent has created the one-third discount for guilty-pleas, incorporate into criminal law later [Criminal Justice and Public Order Act 1994], by now sentencing guidelines deal with it in detail [Criminal Justice Act 2003]; Paris 2005

The case of England & Wales • Indication of sentence by judge is now possible [CJA 2003]; • Although there were some rules concerning the exchange of view between judge and defendant [Turner rules which delimited the judge’s role in pre-trial negotiations]. • There are pre-trial hearings to facilitate exchange of information and bring about pleas of guilty; • There are several ways of “negotiated diversion.” Paris 2005

The case of Italy(patteggiamento) • Italy – warrant a pretrial settlement opportunity to reduce delays, not to enhance prosecutorial discretion. • PROSECUTOR: • Less concentration of resources because it is usually after the preliminary investigations have taken place; • Applies only to minor offenses which do not justify an intensive use of resources; • Prosecutor incentives: seniority. • DEFENDANT: • Apply to a minor group of defendants, hence less attractive to accept; • Lots of acquittals for loss of evidence or witnesses and amnesties granted regularly • Delays make worthwhile to protract trials as long as possible to avoid jail Paris 2005

The case of France(plaider coupable) • Similar to the Italian system. Paris 2005

Institutional Details What is Plea-Bargaining? Paris 2005

Institutional Details • Charge bargaining: • Multiple charges: drop some in return for a plea of guilty to one of them; • Unique charge: drop a serious charge in exchange for a plea of guilty to a less serious charge. Paris 2005

Institutional Details • Fact bargaining: • Agreement for a selective presentation of facts in return for a plea of guilty. Paris 2005

Institutional Details • Specific fact bargaining: • Nolo Contendere Pleas: accepts a sanction without pleading guilty • Alford Pleas: accepts a sanction but defendant asserts innocence. Paris 2005

Institutional Details • Plea Bargains: there is a specific discount for pleading guilty. • Plea before venue: the defendant is put to a decision in early stages; • In pre-trial hearings: the prosecutor and the defendant exchange information before bringing a plea bargain; • During the trial hearings (cracked trial due to late or delayed guilty plea). Paris 2005

Institutional Details • Explicit Bargaining: Prosecutor makes a sentence recommendation; Judges indicate the sentence they are minded to impose. • Implicit Bargaining: Defendant pleads guilty, considering the existence of sentence discounts or the possibility of achieving a particular sentence. • Negotiated Diversions: Warnings and reprimands in return for some restitution. Paris 2005

Economics of Plea Bargaining Optimism of Economics with respect to Plea-Bargaining Paris 2005

Economics of Plea Bargaining • Part of efficient criminal procedure because reduces costs and allows prosecutor to allocate resources more effectively. • Part of efficient law enforcement (social welfare maximizing) because reduces costs and uncertainty. • Plea-Bargaining is efficient because it is just like discretion in a regulatory proceeding. Paris 2005

Economics of Plea Bargaining • Plea Bargaining provides • consistent signals that can enhance prosecutorial decisions. • for efficient screening of cases. • for efficient decision to stand trial. • consistency with the low-probability high-penalty enforcement strategy. Paris 2005

Economics of Plea-Bargaining • Plea-Bargaining should be perceived and enforced as a contract between two parties and therefore it should enhance social welfare if voluntarily performed. Paris 2005

Economics of Plea Bargaining • Criminal defense expenditures result in lower expected penalties for the innocent at trial than the guilty and they help ensure that plea bargaining efficiently screens defendants. • A plea bargain might give the lowest penalty to the most culpable defendant if increases the probability of conviction of conspirators. Paris 2005

Economics of Plea Bargaining • Plea-Bargaining helps enforcement agencies getting information for criminal convictions. Paris 2005

Economics of Plea-Bargaining Minor Criticism of Economics against Plea-Bargaining Paris 2005

Economics of Plea-Bargaining • There is a possibility that plea bargaining might dilute deterrence; • Hence, the efficiency depends on the objectives of prosecutors: Ex post objectives of prosecutors should determine ex ante criminal policies of legislator. Paris 2005

Economics of Plea-Bargaining • Increased sanctions can lead criminals to substitute between offenses and thus more severe crime. • Use of plea bargain is determined by increasing trial costs and binding budgets, not social welfare. Paris 2005

Economics of Plea-Bargaining • Due to different prosecutorial objectives, plea bargaining increase social welfare in adversarial systems but not in inquisitorial. • Judicial discretion affects the decision of granting plea bargain. Paris 2005

Economics of Plea-Bargaining Summary of Economics of Plea Bargaining Paris 2005

Economics of Plea-Bargaining • Summary: (1) Economics is quite positive about it; (2) Relies on prosecutorial discretion being efficient; (3) Downplays the role of judges. Paris 2005

Arguments against Plea-Bargaining • Plea-Bargaining is a disaster in criminal procedure • Criminals receive undeserved leniency; • Undermines procedural guarantees for the accused (constitutional issue); • Hurts the innocent; • Unfair bargains; • Strategic choice of moment to bring plea-bargaining; • Other questions. Paris 2005

Arguments against Plea-Bargaining Inadequate and Undeserved Leniency Paris 2005

Arguments against Plea-Bargaining • Undermines: • Retribution; • Deterrence; • Sentencing proportionality. • But usually does not look at the low probability of punishment. Paris 2005

Arguments against Plea-Bargaining Undermines procedural guarantees for the accused Paris 2005

Arguments against Plea-Bargaining • The unavailability of the guilty plea is regarded as a guarantee of defendants’ rights: • Presumption of innocence; • Right to examine witnesses against the accused; • Right to a fair and public hearing; • It is controversial if compatible with ECHR. Paris 2005

Arguments against Plea-Bargaining • Discount for pleading guilty: • Imposes a penalty on the right to be trialed; • Penalizes those who exercise the right to presumption of innocence; • It induces self-incrimination. Paris 2005

Arguments against Plea-Bargaining • Prosecutors face pressure for convictions and plea-bargaining is a mechanism to get them at the expense of procedural guarantees: “batting” effect. Paris 2005

Defense of Plea-Bargaining • All these rights and privileges are derogable if the defendant wishes so… Paris 2005

Arguments against Plea-Bargaining Hurts the innocent Paris 2005

Arguments against Plea-Bargaining • Selection of cases has two implications: (i) innocents stand trial more frequently; (ii) there is pressure for innocents to plead guilty. Paris 2005

Defense of Plea-Bargaining • Selection of cases mirrors the usual problem of type I (acquit the guilty) and type II errors (convict the innocent). Paris 2005

Defense of Plea-Bargaining • Innocent defendants will be induced to plead guilty: • As long as the probability of conviction is positively correlated with the probability of guilt, the selection-of-cases effect implies a reduced number of innocent defendants. • The reason is that prosecutorial discretion is not unconstrained. Hence, even if there is an incentive to offer a plea to low probability convictions, prosecutors have to (i) select cases under a fixed budget; (ii) cannot offer unlimited sentence discounts; (iii) cannot control extra legal sanctions triggered by guilty pleas. Paris 2005

Arguments against Plea-Bargaining Unfair bargains Paris 2005

Arguments against Plea-Bargaining • Plea-bargains can be unfair and favor the wealthy; • Plea bargains are not civil settlements because they not care only about (i) strength of evidence and (ii) expected punishment after trial. There are important factors such as psychological bias and structural forces (lawyer quality, agency costs, bail and detention, rules, sentencing guidelines and statutes) that produce skewed bargains.. Paris 2005

Arguments against Plea-Bargaining • Plea-bargains cannot be seen as voluntary contracts because the affected parties lack the incentive to assure public interest in effective law enforcement and deny defendants a bargaining position to guarantee fair exchange. Paris 2005

Defense of Plea-Bargaining • Judicial intervention to avoid exceedingly lenient plea bargains. It is true that the economic theory says that one should accept plea bargains without judicial review because they allow an efficient use of prosecutorial resources. Plea bargaining with judicial review could be better because (i) avoid dilution of deterrence; (ii) reduces the risk of wrongful convictions. • By hindering the prosecutor’s ability to agree to exceedingly lenient sentences, courts increase the cost of handling weak cases without obstructing the prosecutor’s ability to settle stronger cases. Paris 2005

Arguments against Plea-Bargaining Strategic choice of moment to bring plea-bargaining Paris 2005

Arguments against Plea-Bargaining • Choosing the moment for plea-bargaining: • Strategic management of information by both sides (rules of discovery); • The reputation of the judge or the jury; • Regulation of legal framework: judicial review. Paris 2005

Law and Economics of Plea-Bargaining