Behavioral Economics in Plea-Bargain Decision-Making: Beyond the Shadow-of-Trial Model

Clatch Lauren () and Borgida Eugene
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Clatch Lauren: Department of Psychology, University of Minnesota, 75 E River Rd, Minneapolis 55455, MN, USA
Borgida Eugene: Professor, Department of Psychology and Law School, University of Minnesota, Minneapolis, USA

Review of Law & Economics, 2021, vol. 17, issue 2, 349-383

Abstract: Legal scholars have long assumed that plea bargains are contracts negotiated between rational actors who adhere to the dictates of the normative shadow-of-trial model. The two key features that rational actors presumably haggle over in the shadow of trial are the criminal charge (and associated sentence) and the probability of trial conviction. The behavioral economics theory of discounting, however, offers a theoretical foundation for testing the shadow-of-trial model. This article summarizes findings from experimental discounting studies in behavioral economics and psychological science – showing that these paradigms can be successfully applied to the plea-bargaining decision context wherein the likelihood of trial is uncertain and delayed, and the plea bargain is relatively certain and immediate. We suggest that the implications of applying discounting to plea bargaining are three-fold: (1) empirical evidence suggests that the shadow-of-trial model is too narrow; (2) the discounting of non-monetary losses may involve slightly different psychological processes than contexts involving monetary outcomes; and (3) probability of conviction and delay until trial constitute situational features that elicit guilty pleas despite a defendant’s factual innocence.

Keywords: behavioral economics; discounting; plea bargaining; shadow-of-trial model (search for similar items in EconPapers)
JEL-codes: A12 C92 D03 K14 (search for similar items in EconPapers)
Date: 2021
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DOI: 10.1515/rle-2021-0069

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