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Informal Sanctions on Prosecutors and Defendants and the Disposition of Criminal Cases

45 Pages Posted: 6 Jul 2014  

Andrew F. Daughety

Department of Economics, Vanderbilt University; Vanderbilt University - Law School

Jennifer F. Reinganum

Vanderbilt University - College of Arts and Science - Department of Economics; Vanderbilt University - Law School

Date Written: July 5, 2014

Abstract

We model the strategic interaction between a prosecutor and a defendant when informal sanctions by outside observers (society) may be imposed on both the defendant and the prosecutor. Outside observers rationally use the disposition of the case (plea bargain, case drop, acquittal, or conviction) to impose these sanctions, but also recognize that errors in the legal process (as well as hidden information) means they may misclassify defendants and thereby erroneously impose sanctions on both defendants and prosecutors. If third parties prefer a legal system with minimal regret arising from classification errors, there is a unique equilibrium wherein the guilty defendant accepts the prosecutor’s proposed plea offer with positive (but fractional) probability, the innocent defendant rejects the proposed offer, and the prosecutor chooses to take all defendants who reject the offer to trial.

We also consider the effect of increasing the informativeness of the jury’s decision by extending the model to allow for a three-verdict outcome (not guilty, not proven, and guilty), sometimes referred to as the “Scottish” verdict. We find that: 1) guilty defendants are worse off, as plea bargains get tougher but the rejection rate does not change; 2) innocent defendants are better off; 3) the prosecutor’s overall payoff goes up; and 4) the outside observers’ regret over possible misapplication of informal sanctions is reduced. Thus the Scottish verdict is justice-improving when compared with the standard (two-outcome) verdict.

Keywords: plea bargaining, informal sanctions

JEL Classification: K4, D8

Suggested Citation

Daughety, Andrew F. and Reinganum, Jennifer F., Informal Sanctions on Prosecutors and Defendants and the Disposition of Criminal Cases (July 5, 2014). Available at SSRN: https://ssrn.com/abstract=2462808 or http://dx.doi.org/10.2139/ssrn.2462808

Andrew F. Daughety (Contact Author)

Department of Economics, Vanderbilt University ( email )

PMB 351819
2301 Vanderbilt Place
Nashville, TN 37235-1819
United States
615-322-3453 (Phone)
615-343-8495 (Fax)

HOME PAGE: http://my.vanderbilt.edu/andrewdaughety/

Vanderbilt University - Law School

131 21st Avenue South
Nashville, TN 37203-1181
United States

Jennifer F. Reinganum

Vanderbilt University - College of Arts and Science - Department of Economics ( email )

Box 1819 Station B
Nashville, TN 37235
United States
615-322-2937 (Phone)
615-343-8495 (Fax)

Vanderbilt University - Law School

131 21st Avenue South
Nashville, TN 37203-1181
United States

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