Let’s make a deal: The
psychology of plea agreements
BY EVE M. BRANK, JD, PHD, AND LEROY B. SCOTT, MA, • UNIVERSITY OF NEBRASKA–LINCOLN
Criminal defendants often choose between two fates: The certainty of a plea agreement and the uncertainty of a
trial. Defendants can plead guilty and accept punishment under
a plea agreement, thereby forgoing any chance of a complete
acquittal at trial. Alternately, they can reject the plea agreement
and pursue an acquittal at trial, thereby risking a more serious
conviction and harsher punishment than they would have
received under the plea agreement. Plea negotiations are
so important that defendants are guaranteed assistance by
competent attorneys throughout this process. But this also
means that the defendants’ decisions are likely to be heavily
influenced by their attorneys’ advice.
Although attorneys are advocates for their clients, the
ultimate decision to accept or reject a plea can only be made by
the client. What, then, should be the result when an attorney
insists, against the client’s desire, upon rejecting a plea offer?
What if the defendant receives a harsher sentence at trial than
was offered in the plea agreement? The U.S. Supreme Court
recently heard oral arguments about these issues in the case of
Cooper v. Lafler.
Cooper was charged with assault with intent to murder.
During plea negotiations, the prosecutor offered a plea deal that
would have likely resulted in a 51- to 85-month prison sentence.
The record indicates Cooper admitted to guilt and wanted to
accept the offer, but his attorney was insistent that he could not
be convicted of assault with the intent to murder because he
had only shot the victim below her waist. At trial, the defendant
was convicted and sentenced to 185 to 360 months for the
assault with intent to murder charge.
Despite his reluctance, Cooper nonetheless decided to go
to trial. Why would he do that? Classic psychological research
consistently demonstrates that authority figures can be very
coercive. It is quite possible that Cooper felt compelled to follow
his attorney’s advice to go to trial and forgo the plea agreement.
Even if not coercive, the attorney’s suggestions were likely
viewed as a source of expert information for the client who was
facing a very difficult decision.
Cooper challenged his conviction on the ground that his
attorney was incompetent for letting him go to trial rather than
accepting the plea offer. But how would Cooper have felt about
his attorney had he accepted the plea offer? Criminal defense
attorneys are all too familiar with their convicted clients’
discontent with whichever choice was made. If the clients take
the deal, they view the decision to forgo trial as a bad one. If
they go to trial and come out worse, they view the decision to
go to trial as a bad one.
Although Cooper’s attorney urged Cooper to take what
proved to be a losing gamble, no one knew beforehand how
the jury would have voted. Yet, people have a tendency to think
past events are more predictable than they actually were. This
tendency is called hindsight bias and it probably played a role
in how Cooper viewed his attorney and the case. Armed with
knowledge of his conviction and sentence, Cooper probably
viewed his defense attorney’s suggestion to take the case to
trial more negatively than he would have evaluated that same
decision had there been an acquittal.
Even though Cooper’s case ultimately went to trial,
approximately 95 percent of criminal cases are disposed of
through the plea negotiation process, making it an area of legal
decision-making ripe for psychological research. Such study
could apply classic psychological theories like those related to
authority and hindsight bias and their effects on defendants’
Research could also focus on the general process of plea
negotiations and the role attorneys play in it. Recent research by
Vanessa Edkins, PhD, at the Florida Institute of Technology has
focused on the role of a defendant’s race in plea negotiations.
Specifically, when the defense attorneys read about a minority
as compared to a white client, the projected plea agreement was
harsher. Still, much more research is needed to examine the
entire plea negotiation process and a defendant’s decision to
accept or reject such offers. n
“Judicial Notebook” is a project of APA Div. 9 (Society for the
Psychological Study of Social Issues).
Edkins, V.A. (2011). Defense attorney plea recommendations
and client race: Does zealous representation apply equally to
all? Law and Human Behavior, 35( 5), 413–425. doi: 10.1007/