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Source: http://www.doksinet Plea Bargaining 1 Running head: PLEA BARGAINING Plea bargaining recommendations by criminal defense attorneys: Legal, psychological, and substance abuse rehabilitative influences Source: http://www.doksinet Plea Bargaining 2 Abstract Although most criminal cases are disposed of through the process of plea bargaining, almost no research has focused on this process. This study examined the plea bargaining process from the perspective of the criminal defense attorney. Attorney participants (N=186) responded to a survey containing two vignettes presented in a 2 x 2 x 2 between-subjects design, in which there was systematic manipulation of the following variables in the context of criminal litigation: strength of evidence, defendant’s preference regarding plea, and potential sentence (vignette 1); and strength of evidence, defendant’s acknowledgement of a substance abuse problem, and defendant’s substance abuse rehabilitative history (vignette 2).

Strength of the evidence was rated as a significant influence in both vignettes; attorneys were more likely to recommend a plea bargain in cases in which there was stronger incriminating evidence. We discuss these findings with respect to implications for future research and policy. Source: http://www.doksinet Plea Bargaining 3 Plea bargaining recommendations by criminal defense attorneys: Legal, psychological, and substance abuse rehabilitative influences Understanding the process by which criminal charges are resolved is very important to the larger appreciation of the operation of the U.S criminal justice system There has been a great deal of research focusing on jury proceedings as one means of promoting such understanding (see, e.g, Devine, Clayton, Dunford, Seying, & Price, 2001; Gerbasi, Zuckerman, & Reis, 1977; Greene et al., 2002; Saks, 1997) However, the vast majority of criminal cases are not resolved through jury or bench trials. According to Bureau of Justice

Statistics, in the year 2003, there were 75,573 cases disposed of in federal district court by trial or plea (excluding dismissals); of these 71,683 (95%) were disposed of by a guilty plea (Sourcebook of Criminal Justice Statistics, 2003). Of the estimated 1,050,000 felony convictions in state court in 2002, 95% were estimated (based on available data from 492, 949 convictions) as resolved by the defendant’s guilty plea (Sourcebook of Criminal Justice Statistics, 2003). All of these guilty pleas may not have resulted from plea bargains; there is no existing precise estimate of the proportion of criminal cases resolved through plea bargaining, sotherefore a defendant may plead guilty even in the absence of a plea bargain. However, legal scholars (eg, Clarke, 2001; Guidorizzi, 1998; Hessick & Saujani, 2002) agree that the vast majority of criminal cases are resolved through the use of plea bargaining. Since the plea bargaining process is apparently the most frequently used method

for disposing of criminal cases, one would expect that it would have received significant research attention. Surprisingly, however, there has been little empirical research to date on plea bargaining--and almost none conducted recently. Source: http://www.doksinet Plea Bargaining 4 There are apparently only a few empirical studies on the nature of the plea bargaining process. Gregory and colleagues (1978) found that undergraduates role playing guilty, first-time criminal defendants charged with armed robbery were more likely to accept a plea of three months in jail when faced with more charges (four versus one). They also found that participants were more likely to agree to a plea when the severity of punishment if convicted at trial was much greater than the sentence associated with negotiated plea (10 to 15 years in prison versus 1 to 2 years in prison). These main effects were observed in the group role playing guilty defendants, but not for the group in which participants role

played innocent defendants. A second study (Bordens, 1984) also used undergraduate participants. It considered the following variables: the sentence upon acceptance of a plea (probation, 6 months in prison, 1 year in prison, or 3 years in prison), the sentence if the plea were rejected and the defendant convicted at trial (one or five years greater than the proffered sentence), and the defense attorney’s estimate of the likelihood of conviction at trial (10%, 50%, or 90%). Consistent with Gregory et al. (1978), Bordens found that students role playing guilty defendants were more likely to accept a plea than those role playing innocent defendants. Under the condition of almost certain conviction (90%), however, innocent subjects were inclined to accept a plea bargain if the proffered sentence involved probation rather than incarceration. Bordens reported that guilty subjects were comparably likely to accept a plea when the probability of conviction was 50% or 90%, but less likely to

accept a plea when the likelihood of conviction was 10%. Another study (McAllister & Bregman, 1986) used students to role play both defendants and defense attorneys to examine the impact of sentence severity and conviction probability on the plea bargaining process. Using two levels of sentence severity (2 versus 5 years) and three Source: http://www.doksinet Plea Bargaining 5 levels of conviction probability (20%, 50%, or 80%), the investigators asked mock defendants whether they would prefer a guilty plea with a one year sentence or a trial. They replicated the Gregory et al. (1978) finding that as severity of sentence and probability of conviction increased, so did the likelihood that the mock defendants would accept the plea. They also reported that participants playing the role of defense attorney were influenced by probability of conviction, but not severity of sentence in their recommendations. A fourth study (Bordens & Bassett, 1985) used actual criminal defendants

(N=67) who had plea bargained their cases. The investigators reported seven significant factors that affected defendants’ decisions to accept a plea: 1) pressure from the prosecutor; 2) indirect pressure (including concern over how the case will affect one’s family, fear of severe punishment if a plea is refused, and accepting a plea to secure the lest severe punishment possible); 3) expediency (accepting the plea bargain because it was the fastest or easiest disposition); 4) likelihood of conviction; 5) remorse for the crime; 6) acquiescence (a combination of defendant perceptions that the defense attorney’s input was minimal, their best deal was mediocre, and their treatment was less than fair); and 7) sentence severity (favorable sentence associated with a plea, and/or longer sentence if convicted at trail). Existing empirical research in this area is apparently limited to these four studies, all conducted at least two decades ago and only one using participants who were

actual criminal defendants. 1 It would seem that no study has incorporated practicing criminal defense attorneys, 1 There are also apparently at least two studies focusing exclusively on adolescent legal decision-making that include some examination of plea bargains. Morest recently, Viljoen, Klaver, and Roesch (2005) found that perceived strength of the evidence was a significant predictor in plea decisions for defendants aged 15-17, but not for defendants aged 11-14. This is in contrast to an earlier study of participantsyoung people in grades 5, 7, and 9 (by Peterson-Badali and Abramovich, ( 1993), in which investigators reported who found that even children as youngold as 10 considered strength of the evidence important in plea decisions when informed in hypothetical semistructured interviews that the evidence against them was strong or weak. Source: http://www.doksinet Plea Bargaining 6 a group whose perceptions are clearly important considering their role in advising clients

and negotiating with prosecutors. In the present study, we survey criminal defense attorneys and focus on five variables with theoretical or empirical relevance to plea bargaining: strength of evidence, severity of sentence, defendant’s preference, substance abuse rehabilitation history, and acknowledgement of a substance abuse problem. Both strength of evidence and severity of sentence were supported in the studies cited earlier as contributing to the defendant’s decisionmaking concerning plea bargaining; it is useful to consider whether attorneys will also report these factors as influential. The variable of defendant preference is important for procedural justice reasons (e.g, defendants who are able to express a preference and have that carefully considered are likely to feel more satisfied with the process) and ethical reasons (e.g, the defense attorney’s role involves advising the client but not serving as a substitute decision-maker). However, it will also be useful to

consider how attorneys report weighing client preference relative to other influences. Finally, two variables related to substance abuse – the client’s acknowledgement of a problem and history of favorable response to rehabilitation – were selected. Hypotheses We hypothesized that the variables of (a) likelihood of conviction (based on the strength of the evidence), (b) the defendant’s wishes on whether to plead guilty or to go to trial, (c) the potential sentence if convicted, (d) a defendant’s favorable substance abuse rehabilitative history, and (e) the defendant’s acknowledgement of a substance abuse problem when systematically manipulated in a vignette and presented to participant attorneys, would yield statistically Source: http://www.doksinet Plea Bargaining 7 significant differences in how attorneys rate the likelihood of recommending a plea bargain to a criminal defendant. More specifically, we hypothesized the following for each vignette Vignette 1 1. Strong

evidence of guilt will be associated with a higher probability that the attorney will recommend a plea bargain. 2. A criminal defendant’s stated preference to plea bargain will be associated with a greater likelihood that the attorney will recommend a plea bargain. 3. Longer sentence when convicted will be associated with a greater likelihood that the attorney will recommend a plea bargain. Vignette 2 1. Strong evidence of guilt will be associated with a higher probability that the attorney will recommend a plea bargain that includes mandatory drug treatment. 2. A defendant’s favorable substance abuse rehabilitative history will be associated with a greater likelihood that the attorney will recommend a plea bargain that includes mandatory drug treatment. 3. A defendant’s acknowledgement of a substance abuse problem will be associated with a greater likelihood that the attorney will recommend a plea bargain that includes mandatory drug treatment. Method Participants Participants

were criminal defense attorneys in the metropolitan area of a large, east coast city in the United States. Both private criminal defense attorneys (n = 320) and attorneys with Source: http://www.doksinet Plea Bargaining 8 the public defender’s office (n = 240) were surveyed. A power analysis conducted using a power of .81 and a medium effect size of 25 indicated that 136 participants were needed (17 for each cell of the 2 x 2 x 2 between subjects design). Design We created eight versions of each of the two vignettes, systematically manipulating three dichotomous independent variables usingin a 2 x 2 x 2 between subjects designs. In the first vignette, the three variables were (1) the potential sentence (long vs. short) if the defendant were convicted of all charges, (2) the defendant’s wishes (yes vs. no) regarding a plea bargain, and (3) the strength of the evidence (strong vs. weak) The dependent variable for this vignette was the likelihood of an attorney recommending a plea

bargain. The use of language employing qualitative terms (e.g, “poor chance of acquittal”) rather than quantitative terms (eg, “10% chance of acquittal”) was guided by the anecdotal observation that attorneys prefer qualitative to quantitative language. In the second vignette, the variables were (1) the defendant’s acknowledgement of his substance abuse problem (acknowledged vs. denied), (2) the defendant’s substance use rehabilitation history (favorable vs. unfavorable), and (3) the strength of the evidence (strong vs weak) 2. The dependent variable for this vignette was the likelihood that the attorney would recommend a negotiated plea involving diversion to substance abuse treatment. For both vignettes, attorneys rated the likelihood of recommending a plea on a five point Likert scale: very likely, unlikely, possible, likely, and very unlikely. 2 The variable involving the strength of the evidence was used in both vignettes because the limited available empirical

evidence suggests that it is one of the most influential considerations in attorney decision-making regarding whether to recommend a plea bargain. Source: http://www.doksinet Plea Bargaining 9 We also asked attorneys whether additional variables were important in their decision making about plea bargain recommendations. Attorneys were asked to rate the importance of these variables on a 5 point Likert scale ranging from 1 (extremely unimportant) to 5 (extremely important). Procedures The survey included a self-addressed stamped return envelope to facilitate participant responding. The cover letter included a brief description of the research and indicated that participation was voluntary. Each potential participant received one of eight vignettes from Vignette 1, randomly paired with one of eight vignettes from Vignette 2, in a random stratified procedure that allowed us to send approximately equal numbers of surveys of the 8 vignette pairs and subsequently obtain at least 17

responses for each cell. The order of the vignettes was counterbalanced so that half of the surveys began with a vignette from Vignette 1 and half began with a vignette from Vignette 2. This project was approved by the university IRB Results Sample characteristics A total of 186 attorneys (33%) responded to the survey. The majority of respondents were male (62.4%, n = 116), 269% (n = 50) were female, and 108% (n = 20) did not record their gender. Slightly more than half of the respondents identified themselves as public defenders (51.6%, n = 96) while 473% (n = 88) reported that they were privately employed, and 2 attorneys did not specify (1.1%) Source: http://www.doksinet Plea Bargaining 10 Vignette 1 We conducted a 2 x 2 x 2 between subjects analyses of variance using “rated likelihood of recommending a plea bargain” as the dependent variable, with the following independent variables: (a) strength of the evidence, (b) defendant’s wishes with respect to plea bargaining, and

(c) potential sentence if the defendant were convicted of all charges. There was a significant main effect for strength of evidence, with attorneys reporting a greater likelihood of recommending a plea bargain when conviction appeared more likely [F(1, 177) = 21.21, p < 001; effect size, calculated using eta squared, was .107] There were two significant interactions. The first was a 2-way interaction between potential sentence and the defendant’s wishes, with a plea bargain recommendation most likely when the sentence was longer and (interestingly) the defendant preferred a trial [F(1, 177) = 20.30, p <001; effect size for this interaction, calculated using partial eta squared, was .103] The second was a 3-way interaction between potential sentence, defendant’s wishes, and strength of the evidence, with a plea bargain recommendation most likely in the face of strong evidence, longer sentence, and (again) the defendant’s expressed desire to go to trial [F (1, 177) = 4.14, p

= 043; effect size for this interaction, calculated using partial eta squared, was .023] Post hoc comparisons were conducted using Tukeys HSD test. Using Tukey’s HSD (HSD = .34), significant differences were found in the 2-way interaction (potential sentence and defendants wishes) between all of the separate conditions (see Table 1) with one exception: the longer sentence/plea bargain condition (M = 3.047) was not significantly different from the shorter sentence/go to trial condition (M = 2.928, SD = 12) Source: http://www.doksinet Plea Bargaining 11 Insert Table 1 About Here For the three-way interaction, applying Tukeys HSD (HSD = .40), we found significant differences between the following conditions (see Table 2). The strong evidence/longer sentence/defendant wish for trial condition was associated with a significantly higher mean recommendation for a plea bargain. The conditions with weak evidence/longer sentence/plea bargain

preference was significantly lower than all other conditions, except the lowest; the weak evidence/shorter sentence/wish for trial condition was the least likely to be associated with an attorney recommendation for plea bargaining. None of the other conditioned differed significantly from one another. Insert Table 2 About Here The hypothesis that strong evidence of guilt will be associated with a greater likelihood that a defense attorney will recommend a plea bargain to a defendant was supported. The 3-way interaction suggests that strong evidence was most influential with respect to attorney recommendations, particularly when the potential sentence was longer and (paradoxically) when the client wished to go to trial (see Figure 1). Insert Figure 1 About Here Source: http://www.doksinet Plea Bargaining 12 The second hypothesis - that a criminal defendant’s stated preference to plea

bargain will be associated with a greater likelihood that the attorney will recommend a plea bargain - was not supported, however. The third hypothesis--that a criminal defense attorney is more likely to recommend a plea bargain to a defendant when the defendant is facing a longer sentence--was partly supported. The 3-way interaction suggests that a high potential sentence was most influential with respect to attorney recommendations, particularly when the defendants wished to go to trial and the evidence was strong (see Figure 1). In addition, when this variable interacted with a defendant’s preference for trial in the 2-way interaction, longer potential sentence was most influential with respect to attorney recommendations Vignette 2 Using the second vignette, we conducted a 2 x 2 x 2 between subjects analysis of variance for the dependent variable of likelihood of the attorney recommending a negotiated plea involving diversion to substance abuse treatment. The following

independent variables were included: (a) strength of the evidence, (b) defendant’s acknowledgement of his substance abuse problem, and (c) defendant’s substance use rehabilitation history. There were significant main effects for greater evidence strength [F(1, 177) = 11.38, p = 001] and denial of a substance abuse problem [F(1, 177) = 25.56, p < 001] The respective effect sizes, calculated using eta squared, were .060 for strength of the evidence and 126 for denial/acknowledgement of substance abuse problem. In addition, a significant 2-way interaction was observed between strength of the evidence and defendants rehabilitative history with the strong evidence and favorable Source: http://www.doksinet Plea Bargaining 13 rehabilitative history not powerfully associated with the attorney’s recommendation for a plea bargain [F(1, 177) = 7.53, p = 007; effect size, using partial eta squared was 041] We next conducted post hoc comparisons using Tukeys HSD test (HSD = .34), which

revealed significant differences between the strong evidence/good rehabilitation history condition and all other conditions, and between the weak evidence/good rehabilitation history condition and all other conditions (see Table 3). Insert Table 3 and Figure 2 About Here The hypothesis that stronger evidence will be associated with a higher probability that a defense attorney will recommend a plea bargain that includes mandatory substance abuse treatment was supported in part. When interacting with defendants rehabilitative history (see Figure 2), evidence strength was associated with a greater likelihood of an attorney’s recommending a plea bargain when the defendants rehabilitative history was good. When the history of response to substance abuse rehabilitation was poorer, however, strength of evidence had little apparent impact on plea recommendation. The hypothesis that a favorable substance abuse rehabilitative

history will be associated with a greater likelihood that a criminal defense attorney will recommend a plea bargain that includes mandatory drug treatment was partly supported. Attorneys were more likely to recommend a plea of diversion to substance abuse treatment for defendants with a good rehabilitation history only when the strength of the evidence was strong. Source: http://www.doksinet Plea Bargaining 14 The hypothesis that a defendant’s acknowledgement of a substance abuse problem will be associated with a greater likelihood that a defense attorney will recommend a plea bargain that includes mandatory substance abuse treatment was supported, as we observed a significant main effect [F(1, 177) = 25.56, p < 001; effect size observed for this effect, calculated using partial eta squared, was .126] Acknowledgement of a substance abuse problem (M = 389) was associated with a higher likelihood of recommending a plea bargain than when the defendant denied having a substance

abuse problem (M = 2.96) Other Factors Rated as Important for Plea Recommendations We considered the importance of a number of other influences on whether participating attorneys would recommend a plea bargain to a client. These influences were assessed by asking participating attorneys about them directly at the end of the survey, following their ratings of the vignettes. The influence rated as most important was strength of the evidence (see Table 4) Insert Table 4 About Here We conducted a repeated measures ANOVA to assess whether there were statistically significant differences between the variables in Table 4. Results indicated that these means differed significantly [F(9, 167) = 294.50, p < 001, multivariate partial eta squared = 941] Post hoc pairwise comparisons revealed that strength of the evidence, rated highest in overall importance, was significantly different from all other factors. The three variables from the first vignette

were generally rated among the most important, with strength of the evidence rated close to extremely important, the value of the negotiated plea based on the potential sentence if Source: http://www.doksinet Plea Bargaining 15 convicted at trial regarding plea rated between important and extremely important, and the defendant’s wishes rated slightly above important. In addition, the judge assigned to the case was rated important. Discussion The present findings clearly point to the strength of the evidence against a criminal defendant as an important influence on whether the attorney recommends a plea bargain to the defendant. This is consistent with the available literature on legal theory, and the limited available empirical evidence. This is also consistent with the notion that a plea bargain should be considered a more favorable option when there is less chance of winning the case at trial. So when the attorney, faced with strong evidence of guilt, anticipates that a

defendant would lose at trial, the recommendation for plea negotiation does appear reasonable and prudent. Another factor that emerges as important was the potential sentence if convicted. Legal theory consistently identifies this factor as important in the plea bargaining process, for both defendants and attorneys (Bibas, 2004; Hollander-Blumhoff, 1997). In addition, empirical research has suggested that potential sentence is an important factor in the plea bargaining process, when applied to mock (Gregory et. al, 1978; McAllister & Bregman, 1986) and actual criminal defendants (Bordens & Bassett, 1985) but not to mock criminal defense attorneys (McAllister & Bregman, 1986). The findings from the present study are consistent with a fairly complex picture of the importance of potential sentence, suggesting that criminal defense attorneys sometimes consider the defendant’s potential sentence if convicted, but do so in combination with other factors. In particular, criminal

defense attorneys most strongly considered the potential sentence in plea recommendations when the defendant has stated a Source: http://www.doksinet Plea Bargaining 16 desire to go to trial: the attorney was more likely to recommend a plea when the defendant was facing a longer sentence. When a defendant preferred the trial option, attorneys also indicated that they consider both potential sentence and strength of evidence, so they were most likely to recommend a plea when the defendant was facing a longer sentence if convicted and the evidence was strong. These results suggest that defense attorneys may advise defendants differently depending on whether the defendant preferred trial or a plea bargain. When defendants wished to plea bargain, attorneys appeared to offer advice about plea consistent with this wish. However, a defendant’s wish for trial elicited the attorney’s recommendation for plea under some conditions (longer potential sentence and strong evidence) but not

others (shorter potential sentence and weak evidence). These findings suggest that attorneys’ advice regarding plea is complex when the defendant prefers a trial but more straightforward and heavily influenced by the defendant’s wish when the defendant prefers to plea bargain. 3 The findings from the second vignette suggest that when recommending a plea of diversion to mandatory substance abuse treatment, attorneys again regard strength of evidence as important. They also apparently view the defendant’s acknowledgement or denial of a substance abuse problem as relevant to their recommendation. As in the first vignette, attorneys were more likely to recommend a plea involving diversion to drug court when the evidence was strong, at least with defendants who have a favorable rehabilitation history. This suggests further that 3 With adolescent defendants, the preference for plea may be influenced directly by advice of counsel. At least with adolescents, how they proceed after

listening to their attorney advice may also be more influenced by advice to plead guilty than advice to go to trial. Viljoen, Klaver, and Roesch (2005) reported that adolescent defendants planning found that among adolescent defendants advised by their attorneys, defendants who planned to plead guilty were more likely to have been advised to do so by their attorneys than were adolescents plea guilty than those who planned to plead not guilty. Source: http://www.doksinet Plea Bargaining 17 strength of the evidence is a factor that attorneys consider important when recommending a plea to a defendant in criminal cases of various kinds. Accordingly, it is not surprising that attorneys are more likely to recommend a plea of diversion to mandatory drug treatment for a defendant who has a good rehabilitation history in the face of strong evidence of guilt. In such an instance, diversion represents the best legal “bargain,” allowing the best opportunity for the defendant to avoid the

criminal sanctions while simultaneously undergoing rehabilitation relevant to reoffense risk. Why a defendant’s poor rehabilitation history should change this is less clear. As this is apparently the first empirical study of criminal defense attorney decision making in recommending plea bargains, there are several limitations. First, only two types of criminal cases were depicted in the two vignettes. This obviously does not begin to cover the range of cases and circumstances faced by defense attorneys, something that can be accomplished only through further research. Second, this study focused on one aspect of the plea bargaining process: attorney decision making in plea recommendations. But plea bargaining is a complex process, involving defendants and prosecutors as well as defense attorneys. We do not know whether the perceptions of defendants or prosecutors would be similar in their values assigned to the various factors described in this study. In addition, this was a study of

perceptions, based on hypothetical vignettes. It remains to be seen whether real behavior in legal contexts is consistent with these perceptions – and to what extent. The third limitation involves our response rate (33%) and our sample (criminal defense attorneys in a U.S, east coast major metropolitan area) Both raise questions about the Source: http://www.doksinet Plea Bargaining 18 generalizability of present findings, which will need replication before we can be reasonably confident about their applicability. The vignette-based approach allows systematic manipulation of independent variables, but also limits the number of such variables that may be employed. We had some evidence from the factors endorsed at the end of the survey that we selected among the most influential factors – but further study will promote better understanding of whether we have correctly identified the range of potential influences on plea bargaining. This study represents a first step in studying

attorney decision making in recommending plea bargains. Future research could profitably investigate the perceptions of the other parties – defendants and prosecutors – in the plea bargaining process, as well as the actual behavior of these actors when engaging in plea bargaining. More specifically, such research could address perceived coercion in plea recommendations, the nature of attorney plea advice communication in general (both in terms of how attorneys communicate plea advice and how defendants view that communication), and the factors relevant to the interaction of all parties. This study used qualitative descriptions of the factors to describe attorney decision making. If attorneys do think in qualitative terms when making decisions about plea recommendations to defendants, it would be useful to know if they also communicate such decisions in qualitative terms. This is one aspect of a larger process, involving both decision-making regarding plea recommendations and the

nature of the communication describing such recommendations. The findings from this study may have implications for the psychological theories of procedural justice (Lidz et al., 1995) and therapeutic jurisprudence (see Wexler, 1990; Wexler & Winick, 1991, 1996; and Winick, 1999), a topic we will address in detail elsewhere (Kramer, Source: http://www.doksinet Plea Bargaining 19 Wolbransky, & Heilbrun, in preparation). Future research might focus in more detail on the relationship between defendants’ wishes, what is broadly “therapeutic,” and the interactions of these influences with other factors. This study investigated some of the relevant factors that affect attorney decision making in plea bargain recommendations. This is both very important (the vast majority of criminal cases are disposed of by plea bargains) and grossly understudied (very little research to date has examined the plea bargaining process). We hope that these findings will reverse a 20-year trend

involving almost no empirical research whatsoever in this area, and stimulate other empirical investigation into the plea bargaining process so that we may better understand this complex and important process. Source: http://www.doksinet Plea Bargaining 20 References Bibas, S. (2004) Plea bargaining outside the shadow of a trial Harvard Law Review, 117, 2463-2547. Bordens, K.S (1984) The effects of likelihood of conviction, threatened punishment, and assumed role on mock plea bargaining decisions. Basic and Applied Social Psychology, 5, 59-74. Bordens, K.S & Bassett, J (1985) The plea bargaining process from the defendant’s perspective: A field investigation. Basic and Applied Social Psychology, 6, 93-110 Clarke, C. (2001) Problem-solving defenders in the community: Expanding the conceptual and institutional boundaries of providing counsel to the poor. Georgetown Journal of Legal Ethics, 14, 401-458. Devine, D.J, Clayton, LD, Dunford, BB, Seying, R, & Pryce, J (2001) Jury

decision making: 45 years of empirical research on deliberating groups. Psychology, Public Policy, and Law, 7, 622-727. Gerbasi, K. C, Zuckerman, M, & Reis, H T (1977) Justice needs a new blindfold: A review of mock jury research. Psychological Bulletin, 84, 323–345 Greene, E., Chopra, SR, Kovera, MB, Penrod, SD, Rose, VG, Schuller, R, & Studebaker, C.A (2002) Jurors and juries: A review of the field In J.R Ogloff (Ed), Taking psychology and law into the twenty-first century Perspectives in law & psychology (pp.225-284) New York: Kluwer Academic/Plenum Publishers Gregory, W.L, Mowen, JC, & Linder, DE (1978) Social psychology and plea Source: http://www.doksinet Plea Bargaining 21 bargaining: Applications, methodology, and theory. Journal of Personality and Social Psychology, 36, 1521-1530. Guidorizzi, D.D (1998) Should we really “ban” plea bargaining?: The core concerns of plea bargaining critics. Emory Law Journal, 47, 753-783 Hessick III, F.A & Saujani,

RM (2002) Plea bargaining and convicting the innocent: The role of the prosecutor, the defense counsel, and the judge. BYU Journal of Public Law, 16, 189-242. Hollander-Blumhoff, R. (1997) Getting to guilty: Plea bargaining as negotiation Harvard Negotiation Law Review, 2, 115-148. Lidz, C.W, Hoge, SK, Gardner, W, Bennett, NS, Monahan, J, Mulvey, EP, & Roth, L.H (1995) Perceived coercion in mental hospital admission: Pressure and process. Archives of General Psychiatry, 52, 1034-1039 McAllister, H.A & Bregman, NJ (1986) Plea bargaining by defendants: A decision theory approach. Journal of Social Psychology, 126, 105-110 Mnookin, R.H & Kornhauser, L (1979) Bargaining in the shadow of the law: The case of divorce. Yale Law Journal, 88, 950-997 Peterson-Badali, M. & Abramovitch, R (1993) Grade related changes in young peoples reasoning about plea decisions. Law and Human Behavior, 17, 537-552 Saks, M. J (1997) What do jury experiments tell us about how juries (should) make

decisions? Southern California Interdisciplinary Law Journal, 6, 1–53. Sourcebook of Criminal Justice Statistics (2003). AL Pastore & K Maguire (Eds) Retrieved February 11, 2006 from http://albany.edu/sourcebook/ Source: http://www.doksinet Plea Bargaining 22 Viljoen, J. L, Klaver, J, & Roesch, R (2005) Legal Decisions of Preadolescent and Adolescent Defendants: Predictors of Confessions, Pleas, Communication with Attorneys, and Appeals. Law and Human Behavior, 29, 253-277 Wexler, D.B (1990) Therapeutic jurisprudence: The law as a therapeutic agent Durham: Carolina Academic Press. Wexler, D.B & Winick, BJ (1991) Essays in therapeutic jurisprudence Durham: Carolina Academic Press. Wexler, D.B & Winick, BJ (1996) The law in a therapeutic key: Developments in therapeutic jurisprudence. Durham: Carolina Academic Press Winick, B.J (1999) Redefining the role of criminal defense lawyer at plea bargaining and sentencing: A therapeutic jurisprudence/preventive law model.

Psychology, Public Policy and Law, 5, 1034-1083. Source: http://www.doksinet Plea Bargaining 23 Table 1 Mean Likelihood that Attorneys (N= 186) Recommend a Plea Bargain, by Sentence Length and Defendant’s Wishes Concerning Plea Bargaining. Potential Sentence Defendant’s Wishes Longer Trial Mean Likelihood of Attorney Plea Bargain Recommendation 3.99* Shorter Plea bargain 3.55* Longer Plea bargain 3.05 Shorter Trial 2.93 * significantly different from all other conditions using Tukeys HSD Source: http://www.doksinet Plea Bargaining 24 Table 2 Mean Likelihood that Attorneys (N= 186) Recommended a Plea Bargain, by Strength of Evidence, Sentence Length, and Defendant’s Wishes Concerning Plea Bargaining Strength of Evidence Potential Sentence Defendant’s wishes Strong Strong Strong Weak Strong Weak Weak Weak Longer Shorter Shorter Longer Longer Shorter Longer Shorter Trial Trial Plea bargain Trial Plea bargain Plea bargain Plea bargain Trial Mean

Likelihood of Attorney Plea Bargain Recommendation 4.39* 3.79 3.70 3.60 3.50 3.40 2.59* 2.07* * significantly different from all other conditions using Tukeys HSD Source: http://www.doksinet Plea Bargaining 25 Table 3 Mean Likelihood that Attorneys (N = 180) Recommend a Plea Bargain Involving Diversion to Substance Abuse Treatment, by Strength of Evidence and Rehabilitative History Strength of Evidence Defendant’s Rehabilitative History Strong Good Mean Likelihood of Attorney Plea Bargain Recommendation 3.95* Strong Poor 3.53 Weak Poor 3.41 Weak Good 2.81* * significantly different from all other conditions using Tukeys HSD Source: http://www.doksinet Plea Bargaining 26 Table 4 Attorney (N=186) Ratings of Importance of Various Influences on the Likelihood of Their Recommending a Plea Bargain in Plea Recommendations The likelihood of the defendants conviction based on the strength of the evidence The value of the negotiated plea based on the potential sentence

if convicted at trial The defendants wishes in terms of desire to plea bargain or go to trial The judge assigned to the case Your assessment that the defendant will not present well as a witness if the case goes to trial The defendant has substance abuse rehabilitative needs that might benefit from treatment The prosecutor assigned to case You believe that the defendant is guilty of the crimes The impact on your professional reputation of you were to lose at trial Your current caseload is high N Mean Std. Deviation 186 4.74 .64 184 4.51 .80 186 4.29 .83 186 4.04 .89 184 3.65 .84 182 3.36 1.03 185 2.97 1.02 183 1.76 1.03 185 1.41 .65 186 1.38 .60 Source: http://www.doksinet Mean likelihood of attorney recommending a plea Plea Bargaining 27 Trial Preference 4.50 length of sentence in regular vignette 4.00 longer sentence shorter sentence 3.50 Plea Bargain Preference 3.00 length of sentence in regular vignette longer sentence 2.50 shorter

sentence 2.00 strong weak Strength of evidence in regular vignette Figure 1 Strength of Evidence, Potential Sentence, and Defendant Preference for Plea Bargain vs. Trial Source: http://www.doksinet Mean likelihood of attorney recommending a plea bargain Plea Bargaining 28 rehab history in 4.00 drug case good poor 3.80 3.60 3.40 3.20 3.00 2.80 strong weak strength of evidence in drug case Figure 2 Attorney (N=186) Recommendation for Plea Involving Substance Abuse Treatment, by Strength of Evidence and Rehabilitative History