Heuristics, Biases, and Criminal Defendants

Abstract

This Essay, prepared in connection with the Marquette University Conference on Plea Bargaining: Understanding and Improving Dispute Resolution in Criminal Law, critiques the application of behavioral law and economics to the criminal justice system. It offers two reasons to be skeptical of the usefulness of phenomena such as heuristics and biases to explain the conduct of criminal defendants. First, the psychological atypicality of criminal defendants suggests that heuristics and biases may operate differently in that population than in the more typical populations on which the underlying research is based. Second, the situational nature of behavior counsels against the straightforward application of behavioral law and economics principles to defendants' behavior within the unique confines of the criminal justice system. As a consequence, while there is no need to reject behavioral law and economics as a potential source of valuable insights for criminal law and procedure, scholars ought to proceed cautiously in their application of its teachings.

Keywords: behavioral law and economics, heuristics, biases, criminal defendants, psychology, plea bargaining

JEL Classification: K14, K40, K41, K42