Cognitive Theory and Plea Bargaining

Abstract

Convictions in the criminal justice system now overwhelmingly occur by guilty plea. This is largely due to the “plea-bargaining” system in which the charge and sentence defendants receive as a result of pleading guilty is frequently much less severe than the charge and sentence that they would receive if convicted at trial. In this context, defendants must make complex decisions about whether to plead guilty or go to trial. This article draws on cognitive theory and empirical research to identify three potential weaknesses in the current plea system: (a) incentives offered to plead are likely to override considerations of factual guilt or innocence in a way that may be psychologically coercive; (b) groups that are cognitively disposed to pleading guilty when innocent are being offered insufficient protection; and (c) heuristics and biases are likely to influence plea decisions. Potential policy change to reduce these problems, informed by cognitive theory and decision-making research, then follow.