Think about the oldest and most familiar principles of American law, property and proportional liability, in a new and surprising way, and learn to apply economic reasoning to an especially important and interesting aspect of life.
A Prisoner's Dilemma
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Do curso por Wesleyan University
Propriedade e Responsabilidade Civil: Uma Introdução ao Direito e a Economia
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Wesleyan University
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Criminal Procedure
Criminal liability means that crimes have prices, and how these prices are exacted in practice from people who take rights without compensation is the problem of criminal procedure. How do judges know who is guilty, and what prices guilty people should be made to pay for their crimes? Around the world, two major systems of adjudicating guilt and punishment, the adversarial and the inquisitorial, have evolved over centuries to answer these questions in individual cases, with very different procedures to assess guilt and punishment that express different commitments to truth and fairness. All these procedures are expensive, and governments everywhere must confront the problem of processing large caseloads with limited resources. This has led the inquisitorial systems of Europe and the adversarial systems of England and the United States to new procedures of adjudication that may be reducing the differences between them.
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Richard AdelsteinProfessor
Department of Economics
Hi, everybody. Welcome back.
The Supreme Court discovered plea bargain, bargaining in 1968, when it
considered a case that arose under the Federal Kidnapping Act of 1953.
The Kidnapping Act, passed by Congress, first defined kidnapping based under the
terms of the act, as seizing somebody against their will.
Transporting them across state lines, and then liberating them, as the statute put
it, as unharmed or harmed as the case may be.
If the, the victim of the kidnapping were released harmed, or dead, then the
penalties for the kidnapping could be very severe.
The kidnapping statute as the congress passed it, provided that kidappers, and
now I quote, shall be punished by death if the jury shall so recommend.
Or by imprisonment if the death penalty is not imposed.
So, as the act was structured at least the penalty portion of the act.
If you elected to have a trial and therefore a jury.
You could be sentenced to death if you were convicted and the jury decided was
the appropriate penalty. But since only the jury could inflict the
death penalty. if you pleaded guilty there would be no
jury and thus there was no possibility that you could be sentenced to death.
And so it looked as though the kidnapping act all by itself without any plea
bargaining or anything. Put a price on the right to trial.
That is if you were charged under the federal kidnapping act and there was a
possibility that you could be sentenced to death at trial.
You could avoid that sentence of death, the possibility of it simply by refusing
to go to trial, waiving your right and pleading guilty instead.
You might be sentenced to a very long term of prison, but you could not be
sentenced to death. This law was challenged in 1968 by a
defendant named Charles Jackson, who went by the colorful nickname of Batman.
Batman and his accomplices kidnapped somebody in a man named Grant in
Bridgeport, Connecticut. They put him in a car.
They drove through New York City, across the George Washington Bridge to Alpine,
New Jersey. Where they liberated their victim, not
only not unharmed, but not alive. That is, they killed their victim and
dumped him by the side of the road in Alpine.
Jackson was arraigned, that is, he was arrested and brought before a United
States magistrate. Where the charges against him were read
to him in the presence of an attorney. And he was charged with violating the
Federal Kidnapping Act, and he was asked at his arraignment how he would plead to
the crime. Would he plead guilty and thereby enter a
conviction against himself and then submit himself to whatever punishment the
judge might impose. Or would he plead not guilty, go to trial
and run the risk, as a result of going to trial, that if things turned out badly at
the trial, he could be sentenced to death.
Before he answered the question how do you plead, Jackson objected to being put
in the position of having to make this choice.
The structure of the statute would place this jeopardy on the right to going to
trial. Jackson claimed violated his 6th
amendment right to trial by putting so high a price on exercising the right.
And so, this was the claim that he brought to the Supreme Court.
You'll notice that there is no plea bargain involved in this case because a
plea hasn't been made in the case. And no offer has been made to Jackson to
reduce him to plea. It's too early for that.
He's simply being asked to come to the court and be told by the Judge, exactly
what it is that he's being charged with. And then asked if he wants to proceed and
to keep going. At some later time he might be asked for
a plea bargain. But now he stopped the procedure at this
point and made the claim in the federal courts as it turns out all the way to the
supreme court. That he should not be forced into this
pleading choice at all by the structure of the statute.
And interestingly, the court agrees with him.
The government had argued in trying to defend the structure of penalties in the
Federal Kidnapping Act. That the intention of Congress in putting
this statute together in the way that it did was not to deter defendants like
Jackson from going to trial. Or rather to reduce the number of death
sentences that would actually be imposed. The Congress, according to the
government's argument in the United States versus Jackson.
But Congress believed that and they were probably right about this, that in two
cases with identical facts for the same case before two different sentencing
authorities. Juries are less likely to impose the
death penalty than judges are. And there's a good reason for this.
Sentencing is what judges do for a living, and they get to be hardened at
it. Sentencing is an emotional event the
first time it, it comes before you. It's an emotional even perhaps ever time
it comes before you. But if you'd been doing it for years you
become a little hardened to the suffering that your sentences are going to impose
upon people. And it becomes perhaps a little easier to
sentence someone to death. But a jury typically meets only once a
jury, and typically the members of jury only once in their lives face a life and
death sentencing decision like this one. And they Congress believed are much less
likely the death penalty than would a judge.
Therefore, the jury, they thought, would seek out only the most heinous
kidnappings and single those defendants out to death.
Where a judge, a judge sentencing exclusively, might lead to more death
penalties. The court, the Supreme Court did not
suggest that the government aim was illegitimate.
Rather, this was not something that the government had a right to trial of duty.
Moreover, the court agreed that the problem with the law is not necessarily
coerced guilty pleas. Nobody was forced to a guilty plea.
And nobody, nobody had to plea guilty. There was nothing done to them, either in
the statute or in the prosecutors. That the court was willing to say rose to
the level of coercing them to plead guilty.
But, said the court, if government's aim was to mitigate the severity of the death
penalty by committing the decision to a jury alone.
Then they could have convened a jury for conviction under the kidnapping statute.
Or they could have given judges the authority to impose the death penalty.
And then in principle, the two options with respect to the death penalty trial
and plea, and plea would in fact be teh same.
Since the courts said it was relatively easy for Congress to have structured the
death penalty statute to achieve its aim without burdening the right to trial.
When it did burden the right to trial, it did so unnecessarily.
And that's what made the price that the court, the Congress put on the right to
trial unconstitutional. End of story.
The courts decided the case. It's decided that the statute must be
altered. And it hasn't considered plea bargains at
all. This is not a plea bargaining case.
But in the midst of making the argument that I've just described, the court,
speaking through Justice Potter Stewart, said the following.
The inevitable effect of the statute, the kidnapping statute, is to deter the
exercise of the right to trial. Indeed, I don't think anybody disagreed
with that, but said the court, if the statute had no other purpose of effect.
Then to chill the exercise of this constitutional right by penalizing those
by those who choose to exercise it, then It would be patently unconstitutional.
That is, Justice Stewart seems to be saying.
If a government policy is put in place, whose specific objective is to put a
price on the exercise of constitutional rights.
And to make those, that exercise of constitutional rights costly to people.
Then, that would be patently unconstitutional, and it would have to
fall. But, and I suspect Justice Stewart and
the rest of the justices didn't catch this point, but that's what plea
bargaining does. The point of the sentence discount at the
heart of a plea bargain is to induce defendants to plead guilty.
And you could put it either way. Either by offering them a lenient
sentence if they plead guilty or alternatively by threatening them with
higher sentences if they go to trial. You can't induce people to plead guilty
unless you take the people who don't plead guilty and sentence them more
harshly. So that their example induces their
successive defendant. Successor defendants to wave their right
to trial. Not put themselves in danger of that high
penalty. And submit a guilty plea.
The whole point of the plea bargaining system is to put a price on trial and
therefore to deter defendants from exercising the right to trial.
And the language in the United States versus Jackson seems to imply quite
clearly. That any government plan, any policy that
has the purpose or effect solely to chill the exercise of constitutional rights by
making it costly to do so would be unconstitutional.
The legal community was quick to pick up on this implication of the United States
versus Jackson. And almost instantly, the law reviews
were filled with commentary suggesting that Jackson had sounded the death knell
for the American system of criminal Justice.
Because the system had in fact come to depend so heavily on plea bargaining.
If plea bargaining were to be declared unconstitutional, the system would very
likely collapse. The reason that plea bargaining was so
prevalent was that the people generally were not willing to devote the resources
necessary to criminal justice. To fulfill the promise of a full criminal
trial to all defendants. That's why plea bargains became
prevalent, because they were a cheap way to resolve cases.
But if the Supreme Court were to declare plea bargaining unconstitutional, then at
least in the first instance, every defendant would have to be given a
criminal trial. Or in this case would have to be
dismissed and the resources available to the criminal justice system were simply
far from sufficient to grant even a fraction of criminal defendants a full
trial. The Supreme Court saw immediately the
implications of what it had done and it tried to fix the problem as quickly as it
could. Now, it was drawn against it's will, I
think, into looking at the system of plea bargaining that it had implicated in the
United states vs Jackson. and deciding what to do about the plea
bargaining system in light of the language that the court had used in
United States vs Jackson. The court, I, believe, understood that it
could not declare plea bargaining unconstitutional.
It could not throw the entire system of American criminal justice into chaos all
at one stroke. By calling plea bargaining
unconstitutional in a situation where perhaps it had never even intended to
call the institution of plea bargaining into question in the first place.
And so the supreme court resolved to clear up the confusion that it had caused
about plea bargains by deciding a second case.
This one actually involving a plea bargain that was raised under the same
federal kidnapping statue that had been litigated in the United States vs
Jackson. This second case concerned a kidnapper
named James Brady, who with his accomplice, were accused in 1959 of
violating the Federal Kidnapping Act by transporting their kidnapped victim
across State lines. And also depositing, harmed, I suspect in
this case, given the severity of the penalties, that this victim was also
liberated dead. And so in 1959, well before the Jackson
case. The kidnapping statue stood as it did
before Jackson. One could only be sentenced to death
after a conviction of kidnapping by a jury.
And that could only happen at trial. It turned out that Brady and his
accomplices were the only surviving witnesses of the kidnapping.
Their victim was dead and therefore couldn't testify in court against either
one of them. Therefore, the police didn't have quite
enough evidence to put either Brady or his accomplice away for kidnapping.
Unless they could get one or the other, the two of them, to turn.
That is to plead guilty and agree to testify against the other one.
And so, the prosecutors used a time honored tactic, which is the inspiration
for what mathematical economist call the Prisoner's Dilemma came.
Each of the two defendants was put in a separate cell and each was subject to
intense negotiation with a different prosecutor.
Each one of them was threatened with the death penalty if they went to trial and
were convicted. But each one of them was offered a much,
much lesser sentence, a much lesser sentence, if they would defect.
That is to say, if they would turn State's evidence against their partner,
plead guilty, and testify against him at the trial.
And so, the situation that both defendants faced independently of one
another, was that if they both held out and neither one of them took the
proffered plea bargain. It was likely that neither one of them
would be convicted. If they both pleaded guilty, then neither
of them would be needed to convict the other one.
And the courts would be free, the prosecutors would be free to inflict a
higher sentence against them. Or alternatively, one of the could plead
guilty and the other one couldn't. In which case the one who pleaded guilty
would get a very low sentence. And the one who didn't plead guilty,
perhaps on the basis of testimony of the first defendant, could be sentenced to
death. This was the situation that Brady and his
accomplice were in. And for a substantial period of time,
both of them held out. That turns out to be an important fact.
But them, after a while, Brady's accomplice caved in and he agreed to plea
guilty to avoid the possibility of the death penalty.
And he agreed to testify against Brady. When Brady learned of this, then Brady
understood that the chances that he would be convicted at the trial had gone from
very low to very high. And he now understood that the death
penalty was a serious possibility for him.
And so, he too agreed to a plea bargain, but since the prosecutor didn't need him
any longer, he was sentenced first to 50, later reduced to 30 years.
And so Brady, in these circumstances, sits in a jail cell for 30 years, for
kidnapping. Then in 1968, United States vs Jackson is
decided. And the court considers Brady's claim
that his guilty plea was coerced from him by the unconstitutional operation of the
federal kidnapping act. That, as Brady hoped, to ride on the coat
tails of Jackson, and have his guilty plea overturned.
Because the law under which both he and Jackson were being asked to plead guilty
was now being held to be unconstitutional.
The court decided the case in an opinion written by Justice Byron White.
Who is to this day the only member of the United States Supreme Court ever to have
played in the National Football League. White could have decided Brady's case
without discussing the legitimacy of plea bargaining at all.
Simply by concluding from Brady's own behavior that he was not in fact
terrorized by the statute to plead guilty.
How do we know this? Because he help out for so long in the
face of the statute that threatened to put him to death.
He was not so terrorized by the statute that he caved into the prosecutors just
because of the statute. He caved in to the prosecutors only when
he learned that the probability that he would be convicted at the trial had gone
up substantially. Since his claim was that his guilty plea
was coerced from him, the facts show that he was not terrorized or coerced into
giving his plea. He simply made the best of a bad
situation by waving his right to trial and pleading guilty.
If that's all there was to it, the court could have disposed of Brady's case
without saying a word about the propriety of plea bargaining or not.
But that wasn't an option for them after Jackson.
And the only reason that they were deciding Brady's case was to give
themselves another opportunity. To say whether plea bargaining was or was
not unconstitutional, and as you might expect.
The court took this opportunity to say, no, plea bargaining is not
unconstitutional. Moreover, they went on, it's not just an
ugly necessity, it's mutually beneficial. Because in a bargain, here as in all
other exchange contexts. People do not voluntarily agree to
bargains unless they believe that the bargain will put them in a better
situation than they were before. After declaring that plea bargains were
in fact constitutional because of the mutuality of advantage that they provided
to prosecutor and defense. The court went on to outline a series of
rules to govern plea bargaining transactions.
That is, a series of rules to guide prosecutors, and tell them what they can
do and what they cannot do in their negotiations to persuade defendants to
plea guilty. So let's have a look at the rules that
the Supreme Court set out to govern plea bargains in Brady versus United States.
The basic idea of a plea bargain, as we've seen before, is that if the
defendant feels the costs to him of going to trial are greater than the costs to
him of the sentence being offered in the plea bargain.
The defendant will take the bargain. Alternatively, if the defendant believes
that the cost to him of going to trial is less than the cost to him of the sentence
that the prosecutor is offering in the plea bargain.
Then the defendant will take the bar, excuse me, will not take the bargain and
will go to trial. We can represent this with a relatively
simple symbolic equation, it has three terms.
The first term, on the left hand side of the inequality equation C of SPB
represents the cost to the defendant of a bargain sentence equal to PB whatever
that sentence is. Recall that the sentence is deliniated in
years but costs are deliniated in utlity. As I suggested in discussing criminal
liability prices, a year in prison may be worth something different to one
defendant, then it is worth to another. Different people put different values to
them on serving a year in jail and so the cost that each will bear from serving a
year in jail can be expected to differ. So on the left-hand side of the equation,
I put the cost that the defendant will bear if he goes to jail for SPB years.
That is if he accepts a plea bargain where the sentence is SPB.
On the other side of the equation is the trial prospect.
At the trial, the defendant could be sentenced to a higher sentence ST.
We'll assume ST is bigger than SPB. And the defendant will experience a cost,
a disutility, as a result of serving the sentence CST, and we can assume that that
cost is going to be bigger. Than the cost of the plea bargain
sentence if the trial sentence is bigger than the plea-bargain sentence.
That makes sense. Longer sentences impose higher costs on
the people who serve them. But it's not certain that the defendant
is going to have to pay the cost that is associated with the trial sentence if he
goes to trial. That's determined by the probability that
he'll be convicted. So if there was a 50% chance that the'll
be convicted then the relevant comparison is between 50% times the cost of the
trial sentence on one side. And the cost of the plea bargain sentence
on the other. If the cost to the defendant of the plea
bargain sentence is smaller than the expected cost of going to trial, the
defendant will take the bargain. But if the expected cost of going to
trial is smaller than the cost of the plea bargain, then the defendant will go
to trial. On this basis, it's easy to see that
there are three things that can be done to affect the defendant's decision
whether or not to commit to a plea bargain.
The first is to lower the plea bargaining sentence.
As that sentence gets lower, the left hand side of the equation gets lower and
it's likely to fall below the cost of the trial prospect.
And therefore make the plea bargain an alter, an attractive alternative for the
defendant. The second thing that the prosecutor
might do is make it more likely that the defendant will be convicted.
And that will tend to raise the right hand side of the inequality.
And make the trial prospect more costly to the defendant.
And thus make the plea bargain relatively more effective.
Or a third thing that could be done is to raise the stakes of the trial.
As the federal kidnapping statue did and make the trial sentence substantial even
more serious than the plea bargaining sentence.
Such that even if the probability of conviction is low.
Then the plea bargain may still look like a better deal to the defendant.
Than the sentence at trial which would be so high.
So on this basis we can interpret what the Supreme Court approved and
disapproved in Brady vs United States. It decided three things.
But first it's the standard bargaining tactic which is, offering a good deal.
Lowering the sentence that the defendant will have to serve if he agrees to the
plea bargain. That tactic is approved.
If the court was going to allow a pleas bargaining to stay in place.
Then it had to approve the standard tactic of plea bargains.
That is the practice of prosecutors of offering substantially lower sentences
associated with a guilty plea. Than defendants could have expected if
they'd gone to trail on the charge the prosecutor intended to charge them with
and were convicted. So offering a good deal is a
plea-bargaining tactic that the court approved.
Similarly, the court approves of increasing the probablity of convition.
After all there's nothing wrong with getting better evidence agaianst the
defrendant into a trial that icnreases the probably of conviction.
It's because the defendant is almost certainly guilty.
And indeed this is exactly what happened to Brady.
Brady was all ready to go to trial and reject the plea bargain until the
probability that he would be convicted went instantly from very low to very
high. And so the equation went from favoring a
trial to favoring a plea bargain very, very quickly.
And because that was what happened to Brady and Brady's appeal was rejected,
that tactic was approved as well. The Supreme Court however did put one
limit on what prosecutors could do to plea bargain.
And that is they could not push the defendant's jeopardy at trial beyond
reasonable bounds. They couldn't overcharge, that is.
They couldn't pile on different charges that could be associated with the
defendant's single act. So as to subject the defendant to 100
years of worth of jeopardy for a crime that was not nearly that serious.
The problem with the overcharging, the court said, was that by raising ST, and
the C of our ST in our equation. The risk was run that the will of the
defendant would be overboard. And the deal would look so sweet because
the consequences of the trial were so bad.
That the defendant would have his will overborne and coerced into pleading
guilty. This the Supreme Court disapproved but
there was no claim that anything like this was done in Brady's case.
And so at the end of the day the Supreme Court bit the bullet as they say, and
made peace with the plea bargain. After years of turning it's eyes from the
reality of how convictions are actually achieved in the United States.
The Court at last brought plea bargaining into the open, discussed it candidly.
And because they were able to discuss it openly and candidly.
They could begin to discover rules and debate rules that would govern the plea
transaction in the future. It was the candor of the court.
Even though that candor was forced on it by its mistake in the United States vs
Jackson. It was the candor of the Court in facing
up to plea bargaining, in saying that they couldn't do without it.
That made it possible for the Supreme Court to regulate the plea bargaining
system. And make it work as well as it possibly
could.
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