'Do I get out today?' More on the fallacy of plea bargains as free market "contracts"

Bloggers reacting to Grits' Saturday review of a law prof's article on coercion, plea bargains, and free markets added some significant context to the debate. (I appreciated Doc Berman calling the post a "must read" and driving some traffic my way.) At I Was the State, after some much-appreciated compliments for Grits, Robert Guest describes his own experience with plea bargains as a prosecutor:

In East Texas every Friday I had jail docket. We had a nice space in the jail where the prisoners could meet with us and we could "plea bargain." Most of the defendant's had attorneys. If not, they would sign a waiver. These defendants had been in jail anywhere from 14 to 30 days.

These inmates could not get out of county jail because either bail was too high or they had a "hold." A "hold" is a situation where an inmate has a warrant out of another county or parole (a parole hold is typically called a blue warrant.)

95% of these defendants would plead guilty during these jail dockets. Why?

First of all, we offered a lot of "time served" deals. For example, Joe Defendant gets arrested for DWI. Joe has been in jail 30 days and can't make bail. I offer Joe a sentence of.... 30 days. Joe pleads guilty and gets to go home.

Second, if we didn't offer you time served we offered probation. I knew most of the defendants would have a very small chance of completing probation. A common question during these "plea bargain" sessions was "Do I get out today?"

Anyone who has been stuck in jail for 30 days will plead guilty to get out. Out of a year of defendants I maybe had one who insisted on going to trial, and I think he ended up being incompetent. Even the defendants who rejected my initial plea offer would beg to plead guilty when I came back next Friday. People stuck in jail want out.

Meanwhile, over at Corrections Sentencing, Michael Connelly picks up on a different theme from Grits' plea bargain post, arguing that "economic way of thinking pervades not just too much of our economic and social policy but of our law in general and criminal justice in particular." Says Connelly:

When you think of "free markets," you have two choices. Markets that just naturally spring from God's brow if silly, ignorant humans would just get out of the way or markets that have to be consciously structured and zealously maintained to prevent the natural dispositions of humans toward power, accumulation, and self-protection from directing the results predominantly their way. The first option is a religious truth, the second is reality. But being a religious truth, the first is what guides far too much of our reasoning about policy, and not just in economic policy but in education, health, name it.

But reality is that very special and specific foundations have to be laid and protected for markets to generate the outcomes their proponents advocate--in information, power relations between buyers and sellers, and especially in cognitive abilities, which is the point of the article and of Grits' commentary on it. You can't just say you have a market and then let things happen. You can't just say you have free speech and a marketplace of ideas and then let the folks able to buy the biggest megaphones and glittery-ist channels run wild. And you can't just say, we'll let prosecutors and defense, with unequal resources and abilities, do their thing in the market-like process of crim just, whether in a courtroom or out in the halls, and then have the justice and concern for social welfare that the rest of us require turn out magically okay. (Think both O.J. and Genarlow.) Yet, these latter crim just outcomes are all condoned by the magic invocation of process and competition and winner-take-all, just like in our present oligopolistic economy and media. And those who challenge, who note all the naked emperors, are treated to derision for not having drunk the kool-aid.

Connelly places his finger on the pulse of the dilemma. Markets DO work, and we need market mechanisms and market solutions to resolve many of society's stickiest social problems where individual choice complicates top-down, one-size fits all answers. Unfortunately in the modern debate, support for free markets frequently devolves to mean, for many people, "unregulated" markets, which in large-scale enterprises can be a recipe for disaster (take a look at the current sub-prime lending mess or the S&L bust in the late '80s to understand why). For markets to remain "free" over the long haul, "very special and specific foundations have to be laid and protected for markets to generate the outcomes their proponents advocate."

Those necessary conditions do not exist in the courtroom. Free markets don't remain free when governed by dictators, scalawags or oligarchs, and there is no more dictatorial figure in American public life than a zealous prosecutor or a courtroom judge. That's not to disparage their role, it's to recognize that the conditions do not exist in such a setting for a plea agreement to be considered a freely entered into "contract" to be governed by the same statutes and assumptions as an economic transaction, which is how the law currently views a plea bargain agreement.

These commentaries confirm my thinking that skewed and reductionist economic analyses fail to accurately capture the functional realities of plea agreements, which are no ordinary contract in the usual sense and shouldn't be treated as such. This subject deserves much more in-depth exploration than it currently receives in public discussions of crime and punishment.