Behavioral Research in the Shadow of Plea Bargaining

Abstract

Reyna, Reed, Meschkow, Calderon, and Helm experimentally extend to plea bargaining in criminal cases findings from numerous other behavioral contexts that how the bargain is framed affects decisions reached. Framing effects undermine the presumption among many in the law that plea decisions will be rational and made “in the shadow of trial.” This is an important extension of the psychological literature. However, given the complexity of the process of plea bargaining, and in particular, the fact that it is controlled by the prosecutor, involves bargaining with counsel, is done in secret, and there are few restrictions, the practical import of framing effects for reforming plea bargains is doubtful. Nonetheless, given that plea bargaining privileges efficiency over truth, the additional principle of fairness is too often missing from the plea bargain literature. Reyna et al. usefully bring that fundamental concern back into focus.