Judicial Notebook

What psychological issues come into play when a prosecutor negotiates a plea bargain with a defendant? One important issue for psychologists to consider is the practice of "overcharging." The U.S. legal system gives prosecutors flexibility in the charges they bring against defendants — in other words, they can charge a defendant with a more severe crime or with multiple crimes that are unlikely to be proven at trial. Prosecutors are also permitted to negotiate with defendants so that defendants can plead guilty to reduced charges in exchange for relinquishing their right to a trial. This is a common occurrence, with almost 97 percent of federal criminal cases resolved with some form of plea negotiation (U.S. Sentencing Commission, 2011).

Imagine two individuals involved in an altercation where one is killed. The prosecutor could charge the survivor with first-degree murder. Such a charge would likely carry a severe sentence if the defendant were convicted, but it would be a difficult case to prove. For example, in the 2012 death of teen Trayvon Martin in Sanford, Fla., the prosecutor chose to charge George Zimmerman with second-degree murder rather than the lesser charge of manslaughter, even though the Florida standard jury instructions state that second-degree murder requires ill will, hatred, spite or evil intent.

Legal commentators argue that the prosecutorial practice of overcharging encourages defendants, even innocent ones, to plead guilty in exchange for lesser charges. In other words, the defendant is persuaded to negotiate and plead guilty to lesser charges because the initial charges are very serious and often would carry lengthy sentences if the defendant were convicted.

As is the case in other negotiation processes, "anchoring" could have an effect. Anchoring is the cognitive bias that occurs when an individual uses the first piece of available information (in this case, the initial charge) as a reference point that informs later judgments. If the initial charge is excessive, then the anchoring can skew a defendant's perception to believe that any charge less than the initial charge is more acceptable, even if it is still more serious than what might have been proven at trial. Psychological research on anchoring suggests that even implausible anchors will sway a defendant's decision.

The case of Aaron Swartz, co-founder of the popular website Reddit, provides a recent example of prosecutorial charge discretion that some have argued involved overcharging and contributed to Swartz's suicide. Swartz, an Internet-freedom activist, faced charges stemming from downloading academic journal articles from the digital library JSTOR, allegedly with the intent of distributing them among file-sharing networks. Although JSTOR decided not to press charges against Swartz, other related entities pursued legal action. Initially, Swartz was facing a possible penalty of 35 years in prison and $1 million in fines. In the end, prosecutors offered Swartz six months in prison in exchange for pleading guilty to 13 charges. Although the original sanctions and proposed plea deal were drastically different from each other, could the initial proposed charges have been an anchor that influenced Swartz's evaluation of his situation?

Prosecutorial discretion and a defendant's ability to plead guilty to lesser charges are both important parts of our criminal justice system. However, empirical psychological research should further examine the potentially anchoring effects of prosecutors' initial offers to determine whether this common prosecutorial practice results in unfair outcomes for defendants.

“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).