Plea bargaining recommendations by criminal defense attorneys: evidence strength, potential sentence, and defendant preference

Although most criminal cases are disposed of through the process of plea bargaining, little research has focused on this process, and that research has focused on two variables: probability of conviction and potential sentence. This study examined the plea bargaining process from the perspective of the criminal defense attorney and expands prior research by including a third variable: defendant preference regarding plea. Attorney participants (N = 186) responded to a survey containing a vignette presented in a 2 x 2 x 2 between-subjects design, in which there was systematic manipulation of the following three variables in the context of criminal litigation: likelihood of conviction based on the strength of evidence, defendant preference regarding plea, and potential sentence if convicted. All of these variables were considered important to criminal defense attorneys, and how these variables significantly interacted with each other is explained. We discuss these findings in light of past research and theory that suggested attorneys make plea recommendations according only to probability of conviction and potential sentence, and we discuss implications and directions for future research.     

Use of the insanity defense: A survey of attorneys in wyoming

Attorneys in the State of Wyoming were surveyed to determine their reported use of the insanity defense during the preceding 5 years. They were asked about the success, defined as “benefit to the defendant,” of the insanity defense at various stages that occur before trial. The attorneys reported that the insanity defense is used throughout the various stages preceding trial, with more use and benefit to the defendant being reported than previously suggested. This was particularly true for the earlier stages in the criminal justice process. The attorneys were also asked various attitude questions related to the insanity defense. Defense lawyers were more in from of the insanity defense and expressed attitudes that supported the insanity defense while prosecuting attorneys were relatively more opposed to the insanity defense and expressed attitudes consistent with this view.     

The insanity defense: Legal standards and clinical assessment

Although the insanity defense is used infrequently, it has received significant attention from legal and mental health professionals. In this article, we review the historical development of insanity defense standards and describe the standards currently employed in the United States. We present a model for evaluating a defendant's mental nonresponsibility, and we briefly discuss the legal standards and procedures for the assessment of insanity acquittees for release. Throughout the article, we discuss some scientific, ethical, and jurisprudential issues associated with the insanity defense and nonresponsibility evaluations.     

Development and effects of client trust in criminal defense attorneys: preliminary examination of the congruence model of trust development

The present study examines the relation between client participation in attorney-client relationships, the development of client trust in criminal defense attorneys, and client satisfaction with attorneys and case outcomes. The congruence model of trust development (CMTD) is proposed to explain the relation between desired participation by clients, allowed participation by attorneys, and the development of client trust in attorneys. The CMTD predicts that clients who trust their attorneys will subsequently be satisfied with their attorneys and case outcomes. A sample of 96 experienced criminal defendants currently in prison completed the Attorney-Client Trust Scale (ACTS: Boccaccini and Brodsky, 2002) and provided information about their experiences with their most recent criminal defense attorneys. Findings were generally consistent with the CMTD in suggesting that (i) allowed participation is associated with trust in attorneys, and (ii) trust is associated with satisfaction with attorneys and case outcomes.     

Actuarial risk assessment at sentencing: Potential consequences for mass incarceration and legitimacy

The growing utilization of actuarial risk assessment instruments (RAIs) in the American criminal justice system may potentially lead to more restrained, better-targeted uses of incarceration. However, critics have raised a variety of concerns regarding RAIs and suggested, among other things, that their incorporation into court procedures may tend to dehumanize defendants and exacerbate, rather than alleviate, mass incarceration. In response to such concerns, this article offers recommendations for policy and practice that may help an increasingly risk-focused criminal justice system to achieve decarceration goals – and to do so without undermining its own legitimacy in the eyes of defendants or the public at large. These recommendations are aimed particularly at judges, in their roles as sentencers and makers of courtroom and courthouse policy.     

The guilty mind and criminal sentencing: integrating legal and empirical inquiry as illustrated by capital sentencing

We articulate an interpretation of mens rea that is broader than the traditional special sense but narrower than the traditional general sense. Mens rea in this intermediate sense addresses the guilty mind required by the sentencing criteria for specific criminal sentences for particular offenses. We advance an analytic structure for the integration of legal and empirical inquiry regarding standards of culpability that establish eligibility for capital punishment under contemporary United States legal doctrine. This structure addresses legal standards of culpability directly as well as indirectly in the form of evolving standards of decency. The general form of this analysis should be applicable more generally to sentencing provisions that address culpability as a sentencing consideration for other criminal sentences.     

The myth of judicial leniency in sentencing

Opinion polls report that the pubic is increasingly critical of perceived judicial leniency in sentencing. To examine the degree and pattern of judicial leniency, Illinois judges and laypersons were asked to impose sentences on the same offenders. Contrary to the myth of judicial leniency, the sentences given by laypersons tended to be equal to or less severe than those given by judges. Explanations are offered for the divergence between myth and reality, including the availability heuristic and the impact of biased recall.     

The conscience and convenience of sentencing reform in Indiana

Over the course of the past decade and a half, enormous energy and talent have been devoted to the issue of determinate sentencing. Yet today we know little about the values underlying this reform, and we know even less about the efficacy of determinate sentencing as a crime control policy. This article considers these issues in Indiana 10 years after the renovation of the state's Penal Code. Through a survey of state legislators, an examination of law, official statistics, and personal interview data, the analysis endeavors to understand the ideologies, pragmatics, and impacts of sentencing reform. It is suggested that the implementation of determinate sentencing represents a corruption of both good intentions (“conscience)” and policy objectives. Parenthetically, the article argues that the constructs known as the crime control model and the justice model both constitute a case of arid scholasticism. That is, sentencing reform can be more fully understood in terms of organizational “convenience”.     

The insanity plea: Szaszian ethics and epistemology

The traditional legal verdict of ‘not guilty by reason of insanity’ as well as the more recent verdict of ‘guilty but mentally ill’ rest on often unquestioned epistemological assumptions about human behavior and its causes, unjustified reliance on forensic psychiatrists, and questionable, if not deplorable ethical standards. This paper offers a critique of legal perspectives on insanity, historical and current, based on the altermative epistemological and ethical assumptions of Thomas S. Szasz. In addition, we examine Szasz's unique rhetorical analysis of ‘mental illness’ and its implications for forensic psychiatry.     

The purposes of sentencing: Public support for competing aims

With reform of the sentencing process a priority in both the United States and Canada, there has been a growth of interest in public attitudes toward the goals of sentencing. Two studies investigated the layperson's view of the appropriate purpose of sentencing offenders. Previous work on this topic has simply provided subjects with a checklist of sentencing purposes and asked them to endorse one. The present research—using both college students and members of the general public—employed a procedure that allows researchers to infer the principle underlying sentencing decisions. In the first study, subjects rated the importance of several sentencing purposes and also assigned sentences to offenders described in scenarios. Severity of assigned sentence was significantly correlated only with the seriousness of the offence. Ratings of the importance of general deterrence, incapacitation, or rehabilitation were not significantly related to severity of recommended penalties. This result contrasts with the importance ratings of these purposes provided by the subjects themselves. These findings were replicated in the second study, which employed an independent sample of subjects. In contrast to the results of opinion polls, it would appear that the public is more concerned with the principle of just deserts than with the utilitarian sentencing aims such as deterrence, incapacitation, or rehabilitation. The methodological implications of this research and the consequences of these findings for sentencing policy are discussed.     

Stakes and risk: Incapacitative intent in sentencing decisions

Measures of seriousness of the conviction offense and prior criminal record are strong correlates of sentences. This is consistent with a desert orientation to sentencing. Competing sentencing theories emphasize concepts of risk and incapacitation, but their roles in sentencing decisions have received less attention. This study focused on judicial risk assessments and on the concept of stakes. Both variables plausibly are related to incapacitative intents of judges. Our hypotheses that the risk and stakes measures used are relatively independent and correlated with, and have an interaction effect on, decision outcomes were supported. Both judges' assessments of risk and our stakes scale accounted for substantial variation in the decision to incarcerate. Time actually served in confinement also was related substantially to stakes, risk, and their interaction. Implications of the stakes and risk concepts for future guidelines development and decision study in criminal justice are discussed.     

The influence of Afrocentric facial features in criminal sentencing

Prior research has shown that within a racial category, people with more Afrocentric facial features are presumed more likely to have traits that are stereotypic of Black Americans compared with people with less Afrocentric features. The present study investigated whether this form of feature-based stereotyping might be observed in criminal-sentencing decisions. Analysis of a random sample of inmate records showed that Black and White inmates, given equivalent criminal histories, received roughly equivalent sentences. However, within each race, inmates with more Afrocentric features received harsher sentences than those with less Afrocentric features. These results are consistent with laboratory findings, and they suggest that although racial stereotyping as a function of racial category has been successfully removed from sentencing decisions, racial stereotyping based on the facial features of the offender is a form of bias that is largely overlooked.     

Risk assessment savvy: The imperative of appreciating accuracy and outcome

This article focuses on two aspects of actuarial risk at sentencing, the accuracy of the instrument and the outcome it predicts. For theoretical reasons rooted in the cognitive decision-making and sentencing literature, there is a danger that judges and other practitioners might come to overly rely on a “high risk” label or designation without appreciating the accuracy of the prediction or the actual outcome being predicted. Using sentencing and recidivism data from Pennsylvania (n = 10,000), two simple risk instruments are constructed to illustrate the critical importance of understanding accuracy and outcome before relying on the risk tool information.     

Psychiatric prediction of dangerousness in capital sentencing: The quest for innocent authority

Eight states require the sentencer in a capital case to consider directly the question of whether a criminal defendant would pose a danger to the community in the long term. Although all available psychiatric evidence indicates that psychiatrists cannot make accurate predictions of criminal defendants' future dangerousness, sentencers rely heavily upon clinicians' predictions of long-term future dangerousness when imposing the death penalty. Legislatures and courts accept psychiatrists' predictions of dangerousness by relying on an elaborate “subterfuge” which uses powerful emotional influences to cover up painful conflicts of values and to satisfy society's desire for simultaneous innocence and authority.     

Risk assessment behaviors associated with corticosterone trigger the defense reaction to social isolation in rats: role of the anterior cingulate cortex

The extent to which the hypothalamic-pituitary-adrenal axis is activated by short-term and long-term consequences of stress is still open to investigation. This study aimed to determine (i) the correlation between plasma corticosterone and exploratory behavior exhibited by rats subjected to the elevated plus maze (EPM) following different periods of social isolation, (ii) the effects of the corticosterone synthesis blocker, metyrapone, on the behavioral consequences of isolation, and (iii) whether corticosterone produces its effects through an action on the anterior cingulate cortex, area 1 (Cg1). Rats were subjected to 30-min, 2-h, 24-h, or 7-day isolation periods before EPM exposure and plasma corticosterone assessments. Isolation for longer periods of time produced greater anxiogenic-like effects on the EPM. However, stretched attend posture (SAP) and plasma corticosterone concentrations were increased significantly after 30?min of isolation. Among all of the behavioral categories measured in the EPM, only SAP positively correlated with plasma corticosterone. Metyrapone injected prior to the 24?h isolation period reversed the anxiogenic effects of isolation. Moreover, corticosterone injected into the Cg1 produced a selective increase in SAP. These findings indicate that risk assessment behavior induced by the action of corticosterone on Cg1 neurons initiates a cascade of defensive responses during exposure to stressors.     

People as intuitive prosecutors: The impact of social-control goals on attributions of responsibility

Three experiments explored determinants of punitive character attributions to norm violators. Experiment 1 showed that ideological conservatism and manipulated threat to society increased anger and attributional punitiveness when there was ambiguity about culpability. Experiment 2 showed that informing observers that norm violations were widespread and rarely punished increased attributional punitiveness by activating anger-charged retributive goals. Experiment 3 showed that liberals and conservatives alike felt justified in assigning greater blame to high-status perpetrators who commit acts of negligence with more severe consequences but that only conservatives felt justified in doing so for low-status perpetrators. Overall, the results reinforce the hypothesis that societal threat activates a prosecutorial mindset identifiable by a correlated cluster of attributions, emotions, punishment goals and punitiveness.     

The influence of race on sentencing: A meta-analytic review of experimental studies

This article presents a meta-analytic review of simulation studies that examine the effect of defendant's race on jurors' sentencing decisions. Several narrative reviews have characterized the results of these studies as inconsistent or demonstrating only occasional effects. In contrast, the present meta-analysis indicated significant overall support for the hypothesis that racial bias influences sentencing decisions. In addition, our analysis failed to support several common generalizations that have been made about this literature. That is, we did not find that stronger results were associated with older studies, those taking place in the southern US, or those involving the crime of rape. Instead, several components of methodological rigor—the nature of the race manipulation, presence of controls for victim's race, and specification of the race of the subject sample—were most closely associated with stronger results in these studies.     

Initial ownership in bargaining: introducing the giving, splitting, and taking ultimatum bargaining game

In three experiments, the authors studied the role of initial ownership of property in bargaining behavior. For this purpose, they created three new variations of the Ultimatum Bargaining Game (UBG): giving, splitting, and taking UBGs. On the basis of insights of loss aversion and the do-no-harm principle, the authors predicted and found that allocations to the recipient were highest in the taking UBG and lowest in the giving UBG. Additional measures to study the underlying mechanism of this effect indicate that the game type effect was mediated by perceptions of entitlement, which allocators did not want to infringe on. Moreover, the effect was not affected by strategic options as provided by deception or power.