Plea bargaining does not occur in a vacuum. There are several actors (e.g., prosecutors, defense attorneys, defendants) directly involved with plea negotiations and plea decisions. As approximately 95 percent of state and federal convictions result from guilty pleas, the decision-making process that defendants and other actors undergo during plea negotiations is important to understand. This chapter will address the unique and overlapping theoretical, practical, cognitive, and social influence factors that underlie the plea negotiation process and ultimate plea decision. Specifically, this chapter will focus on negotiations – particularly how attorneys approach negotiation ideologically and practically – and the power dynamics present when two or more actors attempt to influence each other. Furthermore, we will discuss the basic social (e.g., obedience to authority) and cognitive (e.g., heuristics) processes that drive defendant decision-making when interacting with prosecutors and defense attorneys. Finally, policy implications and future directions for research will be discussed throughout the chapter.

Chapters 1 and 2 looked at how the official discourse is based on tactical defendants ‘playing the system’ and the justification for sentence discounts corresponding to the timing of guilty pleas is utilitarian benefits to the criminal justice system. This chapter offers an alternative perspective. First it argues that sentence discount for guilty pleas is a form of implicit plea bargaining despite the avoidance to officially recognise the practice of plea bargaining in different jurisdictions. Moreover, operating in tandem with advanced sentence indications and other stages of the criminal process, sentence discounts for guilty pleas arguably serve as pressure for defendants to plead guilty.

This chapter turns its attention to public opinion. A justification given for the sliding scale of sentence discounts for guilty pleas is that encouraging early guilty pleas is in the public interest. Yet extant research on public confidence in the courts and attitudes towards sentencing reveals that the public frequently perceives sentences as being ‘too lenient’. Consequently, while the aim of sentence discounts for guilty pleas is bolstering efficiency and promoting public confidence, they may actually have the adverse effect of reducing sentences that the public already considers too lenient. This chapter begins by examining the role that public opinion plays in sentencing before reviewing existing literature on public confidence in the courts and attitudes towards sentencing. The chapter also reviews the limited literature on public attitudes towards plea bargaining and sentence discounts. It then shows that the public is not supportive of sentence discounts for guilty pleas, especially large sentence reductions.

The second power of the police is used to collect evidence and people, either summarily or by warrant, and present them to a magistrate for adjudication, principally in matters of criminal law. The traditional model assumes the purpose is to establish guilt and determine the appropriate punishment, with the result being incarceration and the harmful and disruptive consequences that often follow from it. A broader conception considers that the law is what signals the government’s legitimate interest in regulating a behavior owing to its risks and consequences, or the manner in which it violates rights, and these statutes are what empower the police to operationalize the government’s interest. This does not mean, however, that the necessary response should always be punitive; it can instead be linkage to care, treatment, or other interventions that address behavior. The chapter closes by observing that the criminal law is nonetheless what empowers the police to act in response to behaviors regardless of the consent or intentions of others, and if the government wishes to retain this ability while shifting crisis response away from police, it will need to solve the puzzle of how actors not empowered by the criminal law can otherwise decisively represent the government’s regulatory interests regarding individual behavior.

This chapter highlights that the Japan Fair Trade Commission was not able to introduce a leniency programme because of Sadanori Yamanaka, the leading politician within the Liberal Democratic Party for competition law reform; that a leniency programme is essentially different from plea bargaining; and that a leniency programme does not necessarily detract from the rigid characteristic of the surcharge, the financial remedy applicable to infringements of the Antimonopoly Act. The chapter further indicates that, when Yamanaka passed away, the opposition to a leniency programme disappeared, partly because the JFTC was able to show the legislator the substantial difference between a leniency programme and plea bargaining and the possibility of introducing a leniency programme without it claiming any discretion. The leniency programme without discretion has led to useless leniency applications, not enabling the JFTC to pursue an investigation or obliging the JFTC to grant lenient treatment without getting full information. As the JFTC considered the latter problem, the leniency programme was amended in 2019.

Maxine Reynolds1 is a poor white woman who was prosecuted for fetal assault in rural northeast Tennessee after her umbilical cord tested positive for opiates. Ms. Reynolds was arrested, and the judge who took a first look at her case set her bail at $25,000, which meant that if she could not come up with 10 percent of that amount, she had to remain in jail while her case was pending. The charging document in her case makes clear that the Department of Children’s Services (DCS) opened a case about Ms. Reynolds’ infant, and it is likely that, by the time she was arrested, DCS had already taken custody of her child. Without going too deep into the details of child welfare, there are a few rules in that system that likely played a role.

Advocates for wide sentence ranges based on retributive principles, with particular sentences presumptively set at the minimum of the range unless an individual is determined to be high risk based on a valid risk assessment, and explains how this regime would reduce the plea bargaining power of prosecutors

Chapter 9 examines the consequences of subjecting children to SORN laws. It argues that registration and notification laws are uniquely ineffective and harmful when applied to children. The chapter begins with a history of how SORN laws came to regulate juvenile sexual misconduct. In response to moral panics around “sexual predators” and “juvenile super-predators,” policymakers explicitly expanded the scope of SORN laws to cover children adjudicated delinquent of sex offenses. The chapter next evaluates the effects of these laws on juvenile offending, particularly recidivism. Contrary to the myths underlying their enactment, children found to have engaged in sexual misconduct very rarely reoffend. Further, the evidence is unanimous that SORN laws do not reduce recidivism. The chapter then compiles evidence on the many deleterious effects SORN laws produce when they are applied to children. Studies of providers and children who are registrants demonstrate that SORN laws increase substantially the risk of suicide and sexual victimization. Furthermore, SORN laws are associated with high rates of plea bargaining among children. In light of these failures and dangerous effects, the application of SORN to children should be abandoned.