Efficient Frontier Tradeoffs and Plea Bargaining

Michelle Alexander, author of The New Jim Crow, has an editorial explaining how to crash the criminal justice system:

AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”…

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

This is a finance blog, so we can bring in the concept of the efficient frontier and tradeoffs.

A lot of decisions are viewed in terms of tradeoffs.  Can your financial portfolio get a higher return without taking on more risk?  In the modern portfolio theory there’s a point where you can’t – any higher return will require a tradeoff in more risk.

Tradeoffs are everyone in economics.  For instance, government policy is often viewed as a tradeoff between equity and efficiency.  Now this only makes sense if you are at the frontier of policy and have exhausted all the potential opportunities to increase both.  Only then are tradeoffs strictly necessary.

Now when it comes to criminal sentencing and plea bargaining, the government hasn’t found that it is required to face tradeoffs.  My favorite fact about plea bargaining, from William Stuntz’s Collapse of the Criminal Justice system (italics in original):

The Court’s decision allowed the government to do two things that, in combination, were hard to pull off: raise the guilty plea rate and raise the average sentences, at the same time. Plea bargains involve compromise-the defendant agrees not to take his case to trial; the prosecution agrees to less severe punishment than the law might allow.  More guilty pleas means more such compromises, which in turn should mean lower average sentences.  But if the law allows for punishment more severe than even prosecutors wish-as it did in Bordenkircher, and as it did increasingly often in the twentieth century’s last years-these “compromises” are easy ones for prosecutors to make.

An increase in plea bargains should require an almost mechanical tradeoff in a decrease in average sentence length.  If you are taking a plea bargain you should get a shorter sentence than if you had gone to trial and lost, therefore more guilty plea bargains should increase the proportion of shorter sentences, lowering that number.

Yet during this time period you had both go up.  No tradeoff!  Which you can do if you pass harsh mandatory minimum sentencing, remove discretion from judges and legally threaten people with harsher sentences for exercising their constitutional rights.

Stuntz also argues that arrests went up almost sevenfold with only a 60 percent increase in prosecutors – which gives you a sense of how efficiently this machine runs now.

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2 Responses to Efficient Frontier Tradeoffs and Plea Bargaining

  1. Asymptosis says:

    This raises a question I’ve long wondered about but haven’t found any writings on. (I’m sure they exist; I haven’t looked very hard):

    Wouldn’t you expect the marginal return on sentence length to decline as sentence lengths get longer?

    IOW, a one-month sentence would have a higher deterrance/day than a 12-month sentence?

  2. beowulf says:

    “An increase in plea bargains should require an almost mechanical tradeoff in a decrease in average sentence length.”
    That assumes that the maximum penalty (the prosecutor’s opening bid if you will) remains unchanged when in fact, the maximum penalty has increased. This is true not just in the sense of longer prison terms (both mandatory and discretionary) but also that every year Congress and the state legislatures make more activities illegal and yet rarely spend time pruning the criminal code of old crimes. A defendant who refuses to plead out to a DUI might have their prosecutor tack on charges for, say, no vehicle emissions sticker, driving without a seatbelt and texting while driving. Even without mandatory minimums, the defendant faces a greater maximum penalty if they fight multiple charges than if they plead out to a single one.

    Of course, there will never be a “plea bargain strike”, the coordination problem is insurmountable (a prisoner’s dilemma you might say). I’ve practiced criminal law, I have an ethical obligation to get the best outcome possible for each of my clients. It’d be unethical for me NOT to be a scab if the prosecutors started offering (as they surely would) lenient plea bargains to my clients to break the strike.
    For anyone who stood firm, judges would retaliate by more or less going on a bail strike. You have a right to bail, but not necessarily an affordable bail. If judges systematically set high bails– no need to go crazy with astronomical numbers– defendants could rot in jail for months waiting for their trial; longer in many cases then they’d have gotten simply by plea bargaining. Its not unheard of for misdemeanors defendants to wait in jail a year before having their case is dismissed without a trial (since the maximum penalty for a misdemeanor is, of course, 1 year).

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