Collateral Consequences and Disenfranchisement

With the high rate of guilty pleas in our justice system, attention needs to be paid to the consequences of these convictions, beyond the sanctions imposed at a sentencing hearing. Namely, the increase in guilty pleas has led to an unprecedented number of United States citizens with restrictions imposed on them that limit their employment, access to housing or government assistance, and to an unprecedented number being deprived of the right to vote. These collateral consequences of convictions, and the disenfranchisement resulting from the loss of the vote, can disrupt an individual’s life often to a greater extent than the short imprisonment many convicted felons face. This chapter looks at the effects of collateral consequences and disenfranchisement, how these may play into the decision to accept a plea (and who should be informing defendants about these restrictions), and whether proper consideration of the effect of collateral consequences is possible given how our current system of pleas is structured. Areas for future research are also identified.

Introduction

While a great deal of psycho-legal research has focused on the trial process—and the decision making of jurors and juries, in particular—trials are not reflective of the current system of justice in the United States. Instead, we find ourselves within a system of pleas (Lafler v. Cooper, 2012) with a scarcity of social science research available to guide us. With this volume, we hope to integrate the current plea bargaining research that informs the field, from charging and defendant decision making, to attorney influences, to the ramifications at the larger system and institutional levels. Spanning multiple disciplines, the research and theories related to plea bargaining have much to contribute to public policy and to changes that individual actors (e.g., defense attorneys, prosecutors, and judges) may decide to incorporate in their daily interactions within our system of pleas.

Juvenile Justice and Plea Bargaining

As with adult criminal court cases, almost all juvenile and criminal court cases involving youth are resolved by guilty plea. This chapter reviews the extant research on youth defendants and guilty pleas. The focus is on three areas: (1) the circumstances surrounding guilty plea decisions (e.g., access to attorneys, time to make decisions); (2) youths’ knowledge about guilty plea decisions and whether they are made voluntarily; and (3) the rationales underlying guilty plea decisions. Additionally, across these three areas the chapter addresses plea decision-making by guilty and innocent juvenile defendants, highlighting the similarities and differences. The chapter concludes with a call for future research and implications for juveniles involved in the juvenile or adult criminal justice systems.

Race and Plea Bargaining

This chapter provides an introductory overview of contemporary theory and research on race and plea bargaining. It reviews theoretical explanations for racial disparities in plea bargaining, summarizes current research on race and guilty pleas, and identifies key limitations in existing scholarship on the topic. The chapter considers how guilty plea processes may contribute to broader patterns of cumulative racial disadvantage. The chapter concludes with an overview of promising new directions for future research in this highly consequential and understudied area of the American court system.

Defense Attorneys and Plea Bargains

In the landmark Gideon v. Wainwright decision (1963), the U.S. Supreme Court established the federal standard of appointed counsel for indigent defendants as fundamental to fairness. This right has been upheld throughout the years and is central to our adversarial system. The attorney’s responsibility is to zealously serve as the accused’s strongest counselor and advocate. In the context of plea bargaining, the attorney can assist the defendant in making a voluntary, knowing, and intelligent plea decision. The attorney may act as a “debiaser,” counteracting irrationality on the defendant’s part. However, research suggests structural influences and psychological processes may impede the role of the attorney. This chapter explores how legal and extralegal factors affect attorneys’ plea decision-making, which ultimately influence defendants’ decisions to waive or invoke their right to trial.

Defendant Decision-Making in Plea Bargains

Defendants who plead guilty usually receive substantially shorter sentences than observably equivalent people who are convicted at trial. One explanation for this discrepancy is that defendants receive a discount for pleading guilty. The primary theoretical model used to explain the different sizes of the discount is referred to as “bargaining in the shadow of the trial.” This model is a rational, choice-based model of defendant decision-making. The model establishes the maximum value of the potential plea or, alternatively, the minimally acceptable discount. The key parameter driving the size of the discount in this model is the probability of conviction. Although more empirical tests are sorely needed, there is some evidence supporting the basic model. However, social scientists have recently shown that actual innocence seems to matter to defendants above and beyond the probability of conviction. This chapter discusses the shadow model as a model of defendant decision-making, evaluates the current state of the evidence, and discusses some of the possible extensions and room for future research.

Arriving at a System of Pleas

This chapter introduces the reader to plea bargaining. The chapter begins with a discussion of the mechanics of plea bargaining and the dominant forms of plea bargaining in the United States’ criminal justice system. In doing so, the chapter examines the manner in which defendants engage in bargaining and the shadow-of-trial model of bargaining. The chapter then discusses the historical rise of plea bargaining in the United States and considers whether today’s plea bargains reflect the U.S. Supreme Court’s vision of the system as laid down in the case of Brady v. United States in 1970 (Brady v. United States, 1970). Finally, the chapter concludes by briefly examining several recent Supreme Court plea bargaining cases and considers whether a renewed focus on plea bargaining jurisprudence is materializing.

Conclusion

This volume has gathered together research from multiple disciplines, integrated into one overall picture of the current state of our justice system. The system of pleas that defendants inhabit means that while plea bargaining is thoroughly entrenched in our present-day notion of justice, the law has not caught up. In this concluding chapter of the book, our goal is twofold. First we highlight two major themes that cut across the chapters. Although there were many possible themes to choose among, we focus on Innocence (with a capital ‘I’) and plea decision-making. Second, we summarize chapter authors’ suggestions for future research—that is, to delineate what the next generation of plea-related scholarship may look like, so that scholars and legal decision-makers alike may continue to move forward.

Sentencing Disparity and Mass Incarceration

This chapter examines how the system of pleas impacts two areas that receive special attention in criminal justice: (1) sentencing disparities and (2) mass incarceration. The first section discusses ways that plea bargaining leads to different punishment levels for individuals whose criminal conduct is otherwise similar. These differences include reduced punishment due to count or charge reductions, or favorable sentence recommendations or agreements, in exchange for a willingness to plead guilty or to provide assistance to the prosecution and law enforcement. The next section discusses how the system of pleas enables mass incarceration. Although the system of pleas was well established by the onset of mass incarceration, and thus did not cause mass incarceration, plea bargaining did create the infrastructure that made mass incarceration possible.

Innocence and Plea Bargaining

The year 2016 produced a record number of exoneration cases involving guilty pleas (National Registry of Exonerations, 2017). Nonetheless, guilty pleas account for a minority of overall exonerations in the National Registry. This chapter provides a broad overview of false guilty pleas, including what they are and why they can be so difficult to document. Also reviewed is current research examining factors that have increased the likelihood of false guilty pleas both in the real world and in the lab. The chapter continues by describing the shadow-of-the-trial model, followed by a discussion of its potential limitations, especially its omission of guilt status as a predictor of plea outcomes. Finally, the chapter concludes with proposed reforms for reducing false guilty pleas as well as with areas of need for future research.