While plea offers (and acceptances) are ubiquitous in our criminal justice system, empirical research on the plea bargaining process remains sparse. A recent paper by David Abrams (Penn.) et al., A (Plea) Offer You Can Refuse, sheds interesting and important new empirical light on a practice largely shrouded in secrecy.
The data encompass information on initial plea offers made for felonies between 2012 and 2017 in Philadelphia, and include initial plea offers for 87.4% of cases. These plea data are supplemented by additional data from the Administrative Office of Pennsylvania Courts as well as the Philadelphia Police Dept. The paper draws defendant-case level data from Philadelphia largely because, as the authors note, "it is the only large jurisdiction that has shared information on all plea offers – both those that are accepted and rejected – for a large number of cases." These data are pressed into the service of exploring the prevailing wisdom regarding the imposition of a "trial penalty" on defendants who reject plea offers.
The paper's core finding, implied in Figure 3 (below), surprises: "We find that initial plea offers are significantly longer than sentences for cases not immediately resolved through a plea, even when a person is later convicted at trial."
Figure 3. Plea offer and sentence length by method of case resolution, where defendant is guilty
What these findings imply, of course, is that "the traditional approach to computing the 'trial penalty' – comparing sentences at trial with accepted pleas – may not be as informative as previously believed." The paper's abstract follows.
“Plea bargaining is ubiquitous in the U.S., yet lack of data on rejected plea offers constrains empirical analysis. We compile novel data covering all initial plea offers for 23,000 felony cases in Philadelphia from 2012–2017. Our analysis yields three main insights. First, rejected offers are longer than eventual sentences, even for defendants convicted at trial. This contradicts the conventional “trial penalty” theory, namely that rejecting a plea offer leads to longer sentences for using more court resources. Second, using accepted offers as counterfactuals for rejected offers can lead to inaccurate estimates of the magnitude and even direction of the trial penalty. Third, even after controlling for detailed observables, initial plea offers are longer for Black defendants, especially those detained pretrial. Our study highlights the complexity of bargaining dynamics and the need for new theoretical frameworks and data on rejected offers to inform both theory and practice."