ADVERSARIAL AND NONADVERSARIAL JUSTICE: A COMPARISON OF GUILTY PLEAS AND TRIALS*

Despite the frequency of guilty pleas, researchers disagree about the ability of plea bargaining to provide justice. Critics argue that plea bargaining deprives defendants of due process rights and procedural safeguards Proponents argue that guilty pleas save resources for cases that require trial and allow officials flexibility to tailor justice to individual defendants. This article explores these issues by examining the effect of defendant and case characteristics on sentence severity for 3,269 male robbery and burglary defendants who either pled guilty or were tried in six U.S. jurisdictions, three of which had recently attempted to eliminate or greatly reduce plea bargaining and three with few restrictions on plea bargaining. The results confirm some criticisms of plea bargaining, but refute others. More criminally experienced defendants and defendants who pled guilty at the earliest opportunity did not receive sentencing leniency. Moreover, to a large extent, the same variables predict sentence severity for guilty pleas and trials. In contrast, the results show that defendants convicted at trial received more severe sanctions than defendants who pled guilty, controlling for case severity, evidence, and offender characteristics The results also suggest that the jurisdictions which attempted to control plea bargaining through more centralized control of assistance succeeded in tightening the fit between case characteristics and sentences for both cases adjudicated by guilty plea and trial.     

Plea decision-making: the influence of attorney expertise,trustworthiness, and recommendation

ABSTRACT

Attorney recommendations influence defendant plea decisions; and the degree of influence likely rests on the perceived trustworthiness and level of expertise of the attorney (factors of source credibility). We explored attorney source credibility factors and how these characteristics influence defendants’ plea decision-making. MTurk participants read a hypothetical plea scenario and were asked to imagine themselves as the defendant in a DWI/DUI case making a plea decision; in the scenario, we manipulated the defense attorney’s level of trustworthiness, expertise, and plea recommendation. There was a significant interaction between attorney recommendation and trustworthiness on defendants’ plea decisions; participants who were advised to accept the guilty plea were more likely to plead guilty when the attorney was high in trustworthiness compared to low in trustworthiness. Attorney trustworthiness did not affect plea decisions for defendants advised to reject the guilty plea. Importantly, attorney trustworthiness affected defendants’ decision to follow the attorney’s recommendation and ultimate plea decision (regardless of expertise), and attorney expertise affected defendants’ confidence in their decision (regardless of trustworthiness). Results suggest individual-level characteristics of defense attorneys affect the influence of the attorney and their recommendation, and ultimately defendants’ plea decision-making.     

Effects of Individual Characteristics on Plea Negotiations Under Sentencing Guidelines

ABSTRACT

Research conducted on the decision points between arrest and sentencing is scarce. There is a need for research to examine processing decisions. This research attempts to fill in the gap of knowledge about case processing decisions by focusing on plea negotiations; specifically, the examination of the effect of individual characteristics on the prosecutor's plea bargaining decisions in a sentencing guideline state by using two dependent variables (negotiated plea vs. a non-negotiated plea and a three category dependent variable simultaneously analyzing negotiated pleas, non-negotiated pleas, and bench or jury trials). The results indicate that race/ethnicity, sex, and age of the offender did not predict the likelihood of receiving a negotiated guilty plea. Using multinomial logistic regression, it was discovered that demographic characteristics were predictors of the decision to negotiate a guilty plea compared to the bench/jury trial conviction. Black offenders were more likely than white offenders to have their case go to trial rather than straight pleading or negotiating a guilty plea.     

Trial Penalties in Federal Sentencing: Extra‐Guidelines Factors and District Variation

The guarantee of the right to a jury trial lies at the heart of the principles that underlie the American criminal justice system's commitment to due process of law. We investigate the differential sentencing of those who plead guilty and those convicted by trial in U.S. District Courts. We first investigate how much of any federal plea/trial sentencing differences are accounted for by substantial assistance to law enforcement, acceptance of responsibility, obstruction of justice, and other Guideline departures. Second, we investigate how such differences vary according to offense and defendant characteristics, as well as court caseloads and trial rates. We use federal sentencing data for fiscal years 2000–02, along with aggregate data on federal district court caseload features. We find that meaningful trial penalties exist after accounting for Guidelines‐based rationales for differentially sentencing those convicted by guilty plea versus trial. Higher district court caseload pressure is associated with greater trial penalties, while higher district trial rates are associated with lesser trial penalties. In addition, trial penalties are lower for those with more substantial criminal histories, and black men. Trial penalties proportionately increase, however, as Guideline minimum sentencing recommendations increase. We also supplement our analysis with interview and survey data from federal district court participants, which provide insights into the plea reward/trial penalty process, and also suggest important dimensions of federal court trial penalties that we cannot measure.     

Is a Plea Really a Bargain? An Empirical Study of Six Cities in China

There is a belief in the criminal justice system that it is better to take a plea offer to avoid uncertain consequences than risk going to trial. Prior studies using the data in Anglo-American courts have suggested that many legal and extralegal factors influence the decision of a guilty plea versus trial. China developed its own plea-bargaining system in 2016. Using 6826 DUI cases adjudicated in six cities, this study examines what factors affect the decision of a guilty plea and whether the guilty plea brings true benefits in Chinese courts. The results show that more serious crimes and more dangerous defendants were less likely to be disposed of through guilty pleas (as opposed to going to trial). One possible explanation is that prosecutors may make more punitive offers in these cases, which in turn discourages defendants from accepting them. In addition, using a propensity score weighting technique to control for potential confounding variables, this study finds that defendants who pleaded guilty were more likely to receive favorable case outcomes regarding pretrial detention and probation decision, which supports the argument that a guilty plea could help a defendant to avoid the “trial penalty” in Chinese criminal justice system.

     

Sentence length: Interactions with race and court

Sentencing research tends to focus on two questions. First, do some categories of offenders receive substantially different sentences than do other categories of offenders, for the same or similar offenses? Second, do some courts give substantially different sentences, when compared to other courts, for the same or similar offenses? Focusing on these questions, researchers have typically examined the impact of three types of variables on either sentence length or sentence type: defendant status variables (e.g., race, education), extra-legal process factors (e.g., court, plea), and legal factors (e.g., seriousness of offense, prior convictions). Study results have been contradictory and inconclusive.The problem with sentencing studies is that only main effects are examined. A more appropriate model is one that contains the interactions between the defendant's race (black/white) and the other independent variables, and the interactions between the court's locale (urban/rural) and the other independent variables.Using data collected in 1978 on 412 male prisoners in Maryland, four interaction terms were found to contribute to an understanding of sentencing decisions. It was found that blacks received longer sentences than whites, net of all other variables. However, whites received lengthier sentences for more serious offenses. In comparison to blacks, whites received lengthier sentences when they used more court resources. It was found that rural jurisdictions give lengthier sentences than urban jurisdictions, net of all other variables. However, in comparison to rural courts, urban courts give lengthier sentences when the defendant uses more court resources. More serious offenses receive lengthier prison terms in rural, as compared to urban, courts.     

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

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.     

Certainty of punishment and sentence mitigation in plea behavior

Mitigation of sentence severity has been cited as a primary factor underlying defendant decisions to plead guilty. It has been studied extensively and it has been assumed, but rarely examined, that few defendants plead guilty in the absence of significant benefits. This paper examines the relationship between sentence benefits and plea behavior. A crime-specific analysis reveals that some defendants frequently plead guilty in the relative absence of significant benefits; conversely, others plead not guilty even though significant benefits are available for guilty pleaders. Applying several decision theory constructs to justice system processing, the defendant's desire to reduce uncertainty is discussed and offered as a tentative explanation for the phenomenon of pleading guilty in the relative absence of significant benefits.     

VARIATION IN TRIAL PENALTIES AMONG SERIOUS VIOLENT OFFENSES*

We examine the differences in the sentencing of those who plead guilty and those convicted by jury trial among defendants convicted of serious violent offenses. Drawing from a focal concerns and court communities perspective on court decision making, we develop several hypotheses about jury trial penalties for serious violent offenders, and how such penalties may vary by offense characteristics, defendant characteristics, and court contexts. Our hierarchical models using Pennsylvania sentencing data from 1997 to 2000 reveal that defendants are substantially penalized if they exercise their right to a jury trial and then lose. Furthermore, this jury trial penalty is not evenly assessed, but depends on the seriousness and type of offense, defendant criminal history, and court contextual characteristics such as caseload, court community size, local violent crime rates, and the size of local black populations.     

RACE,RACIAL THREAT,AND SENTENCING OF HABITUAL OFFENDERS*

As legislatures proliferate novel “enhancements” to criminal sentencing, such as “three-strikes” and related provisions, and as criminologists debate their effects, the role of existing enhancements, such as habitual offender statutes, has received little empirical attention. This article explores the effect of race in the decision to prosecute and sentence eligible defendants as “habitual” offenders. During FY 1992–93, 9,690 males admitted to prison in Florida were statutorily eligible (two prior felony convictions or one prior violent felony conviction) for sentencing as “habitual” offenders. Approximately 20% received that disposition. They will serve at least 75% of their enhanced sentence as compared with the state average of about 40%. Logistic regression, controlling for prior record, crime seriousness, and other relevant factors, shows a significant and substantial race effect. The disadvantage of black defendants is particularly strong for drug offenses and for property crimes that have relatively high victimization rates for whites (larceny, burglary). Race is less consequential for violent and weapons-related crimes. Race effects are more often significant in sentencing contexts that are low in terms of percent black, racial income inequality, drug arrest rates, and violent crime rates. The relevance of these findings for a “racial threat” interpretation of sentencing outcomes is discussed.     

Plea Discounts or Trial Penalties? Making Sense of the Trial-Plea Sentence Disparities

Abstract

There is a consensus that defendants who plead guilty generally receive less harsh sentences than similarly-situated defendants convicted at trial. However, there is less consensus on how to characterize this disparity in the sentence. Some researchers refer to the disparities as “trial penalties,” whereas others refer to them as “plea discounts.” We contend that the two terms have different theoretical backgrounds and underlying assumptions. As a result, the theories require different modeling strategies, and can lead to different predictions on the relationship between the disparity and some key case characteristics.

We start by differentiating the two perspectives theoretically. We then present an empirical analysis on defendants in New York State to substantiate our theoretical arguments. We demonstrate that the estimates of the trial-plea disparities depend on the assumption of the default, as estimates of the trial penalties differed considerably from the estimates of the plea discounts.     

Static and Dynamic Indicators of Minority Threat in Sentencing Outcomes: A Multi-Level Analysis

Designation as a “Habitual Offender” is an enhanced form of punishment which unlike, “Three Strikes” or “10-20-Life,” is entirely discretionary. We use Hierarchical Generalized Linear Modeling to assess the direct effects of race and Latino ethnicity on the designation of Habitual Offenders as well as the effect of both static and dynamic indicators of racial and ethnic threat on those outcomes. Our data include 26,740 adults sentenced to prison in Florida between 2002 and 2004 who were statutorily eligible to be sentenced as Habitual. The odds of receiving this designation are significantly increased for black and Latino defendants as compared to whites, though race and ethnicity effects vary substantially by crime type, being strongest for drug offenses and negligible for violent crimes. Static measures of group level threat (% black and % Latino) have no cross-level effect on sentencing by race or Latino ethnicity. However, increasing black population over time increases the odds of being sentenced as Habitual for both black and Latino defendants. Increasing Latino population increases the odds of Habitual Offender sentencing for Latinos, but decreases it for blacks. The prospect of engaging dynamic as opposed to static measures of threat in future criminal justice and other social control research is discussed.     

The Time Penalty: Examining the Relationship Between Time to Conviction and Trial vs. Plea Disparities in Sentencing

Although studies of sentencing routinely find that defendants who plead guilty receive relatively lenient sentences compared with similarly situated defendants convicted by trial, we have yet to fully understand the role of “mode of conviction” in the sentencing process. In particular, we know little about how the size of the disparity between guilty pleas and trial convictions may depend upon time in case processing, or the timing of pleas; that is, when during the process defendants plead guilty. This is a considerable issue, as “time” often is central to explanations given for plea-trial disparities. The current study examines this central, yet seldom empirically captured, dimension of the sentencing process. Using information gathered in an ancillary data collection effort operated under the supervision of the American Terrorism Study, we differentiate between the mode of conviction and time to conviction and explore the role of “time” in sentence severity, especially with regard to the plea-trial disparity. While consisting of defendants identified in connection with terrorism investigations, and sentenced in federal courts, our study takes advantages of a unique opportunity to isolate the effects of time from the mode of disposition and to explore time correlates of sentencing outcomes. In doing so, we raise important questions about the multiple ways in which time and mode of conviction may affect sentencing more generally and contribute to the larger theoretical discussions of how punishment decisions are made.     

Detention Patterns of Successful and Unsuccessful Insanity Defendants

This study examines the detention patterns of the insanity defendant who is successful with the plea and hospitalized, or unsuccessful and incarcerated. Further comparisons are made with felony defendants who never entered a plea of not guilty by reason of insanity (NGRI). From existing data it is unclear to what extent detention may vary if the plea is successful as compared to if it is not successful. Of all defendants who entered a plea of NGRI in Erie County, New York (Buffalo) between 1970 and 1980, 128 were institutionalized as a result of their disposition. Sociodemographic, institutionalization histories, arrest, and disposition information were collected and analyzed for all 128 individuals. The research evaluates differences in the likelihood and length of either institutionalization or incarceration and in the rates of release between successful NGRI defendants, those who entered the plea unsuccessfully, and those who did not plead NGRI. From the findings reported here the authors conclude that pleading NGRI in Eric County may not be quite as advantageous for a defendant as commonly is believed.     

被告人不认罪案件量刑程序的理想模式

被告人不认罪案件的量刑程序如何设计是当前量刑规范化改革试点过程中一个争议较大的问题,在司法理论和实践中有两种不同的模式——相对独立的量刑程序模式和隔离的量刑程序模式。量刑规范化改革的目的在于使量刑过程程序化、公开化,从而实现量刑公正,达到罪责刑相适应的要求。针对被告人不认罪案件,建立理想的量刑程序模式,将定罪程序与量刑程序有效地分隔开来,有利于达到量刑规范化改革的目的。     

THE JUSTICE SYSTEM AND SENTENCING The Importance of Race in the Military

Data on incarcerated Navy and Marine Corps personnel are examined to determine the impact of offender's race on sentence length. The literature on sentencing in the civilian sector has long suggested that under certain circumstances blacks (or whites) receive unjustifiably long sentences. It is argued here that much of the variation in senate is due not just to characteristics of the offender, but also to characteristics of the sentencing process. The military forms a more state sentencing environment than the civilian setting; hence one should expect less variation due to the sentencing process. Analysis revealed that blacks and whites showed no statistically significant differences in sentence length, in both the Navy and Marine Corps. When small differences did exist. whites were usually recipients of the longer sentences.     

THE SEXUAL STRATIFICATION HYPOTHESIS AND SEXUAL ASSAULT IN LIGHT OF THE CHANGING CONCEPTIONS OF RACE

Recent research examining race-based sentencing has reported anomalous results. It has been argued by Heck (1981) and Peterson and Hagan (1984) that these anomalies would not be perceived as such given a greater sensitivity to the "changing conceptions of race" in American society. This study performs a limited test of the sexual stratification hypothesis which asserts that various degrees of opprobrium are attached to sexual assaults depending on the racial composition of the offender/victim dyad. This hypothesis is tested with an additive and a race-specific model. The additive model fails to reveal any significant differences in severity of penalties based on either offender or victim race. The race-specific model reveals that significantly harsher penalties were imposed on blacks who sexually assaulted whites than were imposed on blacks who sexually assaulted blacks. The additive model suppresses this differential sentencing severity because blacks who assaulted blacks received the most lenient penalties, thus moving the black grand mean to one which was not significantly different from the white grand mean. Thus, both differential leniency and harshness are possible for blacks depending on the race of the victim.     

Criminal justice decision making as a stratification process: The role of race and stratification resources in pretrial release

Our purpose is to bridge the criminal justice and stratification research literatures and to pursue the argument that homologous structural principles stratify allocation processes across central institutions of American society. The principle observed here in the making of bail decisions, as in earlier studies of the allocation of earnings, is that stratification resources operate to the greater advantage of whites than blacks. The operation of this principle is established through the estimation of covariance structure models of pretrial release decisions affecting 5660 defendants in 10 federal courts. Education and income are treated in this study as observed components of a composite construct, stratification resources, which works to the greater advantage of whites. Prior record is also found to operate to the greater advantage of whites. Two further variables, dangerousness and community ties, increase bail severity among blacks and whites. While the effect of community ties has been legally legitimized since the Bail Reform Act of 1966, the effect of dangerousness was not so legitimized until the Bail Reform Act of 1984. However, because our data precede the latter act, they confirm that this act simply reinstitutionalized earlier practice. Meanwhile, our race-specific findings may explain why although this and earlier studies find negligible main effects of race on criminal justice outcomes, black Americans nonetheless perceive more criminal injustice than do whites. In the criminal justice system, as in other spheres of American society, whites receive a better return on their resources, but our findings that the statutory severity of the offense and dangerousness work to the relative disadvantage of white defendants challenges conflict and labeling theory's one-dimensional characterization of black defendant disadvantage.     

Race and the probability of pleading guilty

The legal ramifications of pleading guilty and findings of an interdependence between pleading guilty and sentence severity suggest that the guilty plea decision is a significent turning point in case processing. The present research examines the variables affecting the probability of pleading guilty. The first analysis involves estimating a single probit equation of main effects of variables previously found to be related to pleading guilty. A second analysis is conducted estimating the same equation separately for black defendants and white defendants. Findings from the first part of the analysis indicate that physical evidence, number of charges, and confessing to the crime during police/prosecutor interrogation increase the probability of pleading guilty, whereas the number of witnesses, use of a weapon, and offenses carrying a minimum penalty of 5 years in custody with no maximum prison term decrease the probability of pleading guilty. Findings from the second analysis indicate that the effect of marital status, prior record of felony convictions, type of counsel, number of charges, and use of a weapon on the probability of pleading guilty varies by defendant's race. The research concludes by offering several competing explanations of these findings in hope of stimulating further research on the variables affecting the route of case disposition in felony processing.     

Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial

This article develops an interpretative framework to examine when incentives to plead guilty should be found to constrain defendant choice to waive fair trial rights under the European Convention on Human Rights. This framework is informed by existing jurisprudence, specifically the judgments of the European Court of Human Rights in Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and socio‐legal literature. According to the framework, an incentive to plead guilty should be found to violate fair trial rights where it makes it unreasonable to expect defendants to exercise their right to a full trial, is independent of the projected outcome at trial, and causes the defendant to plead guilty. An empirical analysis of guilty‐plea practice in England and Wales informed by this new framework identifies problematic incentives and suggests such incentives may disproportionately influence vulnerable defendants.