Justice Served? Perceptions of Plea Bargaining Involving a Sexual Assault in Child and Adult Females

Abstract

Seventy-four community members (46 women, 28 men) read vignettes describing a plea bargain in a mock sexual assault case. We employed a within-participant design and manipulated rape victim age (6- vs. 26-year-old), type of plea bargain agreement (reduced prison sentence vs. only probation), and reason for plea bargain (save victim from reliving a traumatic experience vs. save time in court). Participants answered questions about the plea bargain agreement (e.g., was justice served). The results showed less support of plea bargaining when it (a) involved a child, (b) involved only probation, and (c) when the rationale for the plea bargain was to save time. Significant moderation revealed that plea deals involving probation in 6-year-old child cases were perceived most negatively. The results are discussed in terms of procedural justice theory in sexual assault cases, and how perceptions of the general public impact the use of plea bargaining as a legal tool.

Keywords

plea bargain sexual assault courtroom perceptions rape legal psychology

If you ask most people, they are likely to believe that a majority of sexual assault cases, regardless of the age of the victim, are decided by a jury. However, the reality is that only a small percentage of these cases actually are brought before a jury. For example, in 2013, only 14% of sexual abuse cases in the United States were decided in court (61 by jury and two by a judge of 464 total cases; Bureau of Justice Statistics, 2013). Thus, a sizable proportion of sexual assault cases involved plea bargaining, which is defined as “the exchange of official concessions for a defendant’s act of self-conviction” (Alschuler, 1979, p. 3). Plea bargaining negotiations typically involve only the prosecution and defense, although a judge must approve the agreement (American Bar Association [ABA], 2016; Redlich, Bushway, & Norris, 2016). Even so, a plea bargained conviction is legally the same as a conviction following a trial (Wendel, 1999). Despite the widespread use of plea bargaining in sexual assault cases (e.g., University of Indiana student accused of rape; White, 2016), very little is known about how the public perceives plea bargaining in sexual assault cases. Does the public approve of this common legal tool? Alternatively, and looking to procedural justice theory (Tyler, 1990), does the public feel that plea bargaining in cases of sexual assault results in victims not receiving justice? Such a viewpoint might lead prosecutors to rethink their approach to the use of plea bargaining. The purpose of the present study is to examine the perceptions of plea bargaining involving sexual assault to determine the impact of victim’s age (child vs. adult), type of plea bargain agreement (prison vs. probation), and reason for a plea bargain (save victim from testifying vs. time saved).

Arguments for and Against Plea Bargaining

Although plea bargaining is common today among all types of crimes throughout the justice system, it is important to note that this was not always the case. In fact, Rakoff (2014) noted that the Founding Fathers of the United States felt that a speedy and public trial by an impartial jury was extremely important—as seen in the Sixth Amendment to the Constitution (see also Alschuler, 1979). Over time, plea bargaining has become more and more an accepted part of the justice system (Brown & Bunnell, 2006). The reasoning behind this increase has been thoroughly discussed by Alschuler (1979) and includes the following: (a) trials became more complex, longer, and more costly in the latter half of the 20th century; (b) the Warren Court providing greater due process rights to criminal defendants and thus more leverage to make pretrial plea bargains; and (c) the Supreme Court deciding in 1970 (Brady v. United States) that plea bargaining was inherent in criminal law and its administration.

The increase in plea bargaining has led to a great deal of debate in the legal community as to whether plea bargains are a positive or negative component of the justice system. On one hand, some argue that plea bargaining works for defendants. Defendants rationally choose a plea bargain offered over the uncertain expected sanction at trial based on their preexisting risk preferences (Tor, Gazal-Ayal, & Garcia, 2010); defendants “reap discounts” in exchange for their guilty plea (Burke, 2007). Defendants can also be aided by plea bargaining if they do not have the resources necessary to go to trial. With regard to victims, Wendel (1999) noted that plea bargaining can be beneficial because it avoids the trauma of a victim having to testify in court. This was stated by some in the Cleveland kidnapping case of three women who were held and repeatedly raped by Ariel Castro over a 10-year period. Because Castro took a plea bargain, his victims were spared from reliving their trauma in the courtroom (Frantz, 2013). Plea bargaining is also supported by those who cite an overcrowded docket in almost all jurisdictions leading to long delays in cases reaching trials, and to prosecutors lacking the time and resources to pursue all indictments (Herzog, 2003; Stuntz, 2004).

On the other hand, those who oppose plea bargaining, at least to the degree it is used today, have made a number of arguments: (a) plea bargaining typically occurs behind closed doors and with little or no judicial oversight (Rakoff, 2014) and usually contains little victim input (ABA, 2016); (b) prosecutors are allowed too much discretion in constructing a plea bargain compared with judges who are held to strict sentencing guidelines (Burke, 2007; see also Slobogin, 2016); (c) research shows that those who accept a plea deal are likely to receive a lighter sentence than those who opt for a trial, thus accepting a discounted plea to avoid the risk of a severe trial sentence; (d) plea bargaining leads to innocent defendants pleading guilty because of time pressure put on defendants to accept a plea despite the possibility that the defense does not have all case information, which is sometimes the result of public defenders having large caseloads (Clarke, 2013); (e) innocent defendants may also plead guilty because lengthy time in jail for pretrial detainees who cannot afford to make bond can lead to accepting a plea bargain to avoid oppressive jail conditions (Clarke, 2013); (f) on the defense side, plea bargaining can lead to later accusations in child sexual assault cases because after a plea bargain, prosecutors can pursue additional charges against a perpetrator because they have admitted committing this crime before (Wendel, 1999); and (g) a lower number of jury trials will lead to young lawyers losing experience in the courtroom (Weiser, 2016).

Procedural Justice and Public Perceptions of Plea Bargaining

Although legal theorists argue the merits of plea bargaining, there is an important question concerning how the public perceives these agreements. S. A. Cohen and Doob (1989-1990) argued that public perception of plea bargaining is very important because it is critical for the law to enjoy the respect of those who are served by it. In a related vein, the public’s perception of plea bargaining also has implications for beliefs concerning the seriousness of crimes, which in turn can influence policy decisions in the criminal justice system (Flanagan, 1987). Furthermore, if the public has negative views of the judicial system, it may undermine public readiness to obey the law (Rattner, Yagil, & Pedahzur, 2001). One might surmise that if the public is totally against plea bargaining based on media coverage of specific court cases in which a seemingly unfair plea bargain reduced the jail time for a defendant who pleaded guilty, then lawmakers may legislate limits on how often plea bargains are offered. In this way, Rakoff (2014) noted that to some, plea bargaining has been viewed as a “devil’s pact,” whereby a guilty defendant can avoid the full force of the law and is rewarded for pleading guilty. Herzog (2003) added that the public abhors injustice and that plea bargaining prevents justice from being served because offenders are allowed to receive lesser punishments than if found guilty in a jury trial.

Despite what is written in scholarly rhetoric, it is unclear what the public really thinks about plea bargaining; very little research has been conducted on this issue. However, there are a few early studies that investigated perceptions of plea bargaining—though these studies did not specifically study the issue of public perceptions of plea bargaining from a procedural justice perspective. First, Fagan (1981) investigated public attitudes toward the courts in the state of Washington using a community sample. There was evidence of generally positive views toward the courts, but 82% agreed that reductions in charges should not occur. Second, Rich and Sampson (1990) used a community sample in Chicago and found that 64% rejected plea bargaining, with women (71%) more likely to reject it than men (55%). Third, S. A. Cohen and Doob (1989-1990) conducted a study after the Law Reform Commission of Canada released a report in 1989 that proceeded on the premise that plea bargaining was held in low esteem by the general public. In this study, a Canadian community sample read an armed robbery case, and the results showed that 79% of participants disapproved of plea bargaining. Other findings included that those who disapproved of plea bargaining thought that prison sentences were not severe enough, that bargaining to generate a plea leads to more disapproval of the plea bargain, that plea bargaining is seen as a mechanism by which people receive lower levels of punishment than they deserve, and that there is more disapproval of plea bargaining if a full explanation of the plea bargaining process is not given in open court.

Next, Herzog (2003) examined the relationship between public perceptions of plea bargaining with regard to crime seriousness. Herzog hypothesized that perceptions of plea bargaining should vary as a function of crime seriousness, such that more serious crimes lead to lower approval of plea bargaining. Israeli community members received short, multidimensional scenarios of complex phenomena. Each scenario was comprised of eight dimensions (criminal act—for example, murder, rape, bribery, and tax evasion; crime seriousness; degree of injury/damages; type of plea bargain agreement; judicial involvement; victim participation in plea bargain; prosecutorial consideration in plea bargain—for example, time saved, certain conviction, and money saving; and criminal record of offender), with randomly selected values from each of the dimensions. Participants read each scenario and rated the seriousness of the crime (i.e., more serious crimes involved more harm to the victim) and support for the plea bargaining described. The results showed a negative relationship between crime seriousness and support for plea bargaining, with no impact of participant gender on support for plea bargaining. In addition, time saved for the prosecution as a reason for the plea bargain was negatively related to support for plea bargaining. Herzog (2003) concluded wide heterogeneity of views of plea bargaining existed.

It should be noted that Herzog (2003) included “girl rape” as one of the crimes to be rated and that the rape was said to have occurred on a date. Still, because no age was specified, it is difficult to know whether participants perceived the victim as a child (i.e., below 18 years old) or an adult, or what age the victim was thought to be. In addition, the results indicated that the “girl rape” crime was perceived as the second most serious (after wife murder) and it led to the second lowest support for plea bargaining. With regard to the latter, 63.1% rated this scenario as “low plea bargain support,” 6.3% rated this scenario as “medium plea bargain support,” and 30.6% rated this scenario as “high plea bargain support.”

More recently, Herzog (2004) investigated whether the covertness and secretiveness of plea bargains increase public suspicion and reduce confidence in plea bargains. Scenarios were set up in a similar fashion to Herzog (2003), except this study included different levels of judicial intervention (e.g., no involvement vs. judge actively participating in the plea bargain process between the prosecution and defense). The results revealed that participants were more supportive of plea bargaining when the judge played a more active role in the plea bargaining process compared with when the judge was not involved in this process.

The results of prior research investigating public perceptions of plea bargaining generally indicate that the public has a negative view of plea bargaining, but that certain procedural changes in the judicial process (e.g., active participation by the judge; Herzog, 2004) can lead to positive changes in these perceptions. Although not suggesting a clear theoretical framework in which to discuss prior results, Herzog (2004) stated that they may be due to the public having a negative view of plea bargaining both in terms of sentence leniency and the covertness of the judicial process. The present research will extend Herzog’s (2004) thinking about public perceptions of plea bargaining by investigating these perceptions in the context of procedural justice (see Tyler, 1990; Tyler & Huo, 2002).

Procedural justice is defined as the fairness involved in the process of making a legal decision (Community Oriented Policing Service, n.d.). Fairness is typically discussed in terms of the perception of the attributes of the decision-making process by those directly impacted by a legal case—the victim (see O’Hear, 2007) and the defendant (O’Hear, 2008). These attributes include voice (did the victim and defendant have a chance to tell their side of the story), neutrality (were the authorities unbiased), trustworthiness (were the authorities caring), and respect (were the victim and defendant treated with respect). In addition, Tyler and Huo (2002) stated that the perception of fairness is ultimately tied to whether the legal authorities who made the decision will be regarded as legitimate and should be obeyed. Although Tyler’s (1990) theoretical model of procedural justice is tied to perceptions of legal decision making by a victim and a defendant (see also O’Hear, 2007, 2008), the present study investigated whether public perceptions of plea bargaining also involve assessing procedural justice. However, it is argued that public perceptions of plea bargaining in a case of sexual assault involve identification with the victims of these crimes and assessing procedural justice in terms of these victims (see Herzog, 2004).

The Present Study

Research conducted on perceptions of plea bargaining has allowed scholars to begin considering how the public thinks about this judicial mechanism. However, whereas the number of plea bargained cases has increased over time, the amount of experimental research investigating plea bargaining has not kept pace. In addition, only one prior study (Herzog, 2003) investigated perceptions of plea bargaining with regard to sexual assault and then only with regard to what was termed “girl rape”; child sexual assault was not examined. Finally, it is important to extend prior research to U.S. samples to assess the generalizability of findings, replicate certain results, assess the impact of additional factors that may impact perceptions of plea bargaining, use experimental designs (e.g., fully-crossed independent variables) that allow for more complete data analyses, and examine perceptions of plea bargaining using a wider range of dependent variables.

In the present study, male and female community members read various vignettes describing a sexual assault (rape) of a 6-year-old or 26-year-old victim. In addition, we manipulated the type of plea bargain agreement (reduced prison sentence vs. probation) and the reason for a plea bargain (to save victim from having to relive a traumatic experience by testifying vs. to save time in court). Participants read each of the eight vignettes and answered various questions about the plea bargain agreement (e.g., how upset they were by the plea, and the degree to which they felt justice was served). We tested four hypotheses based on Tyler’s (1990) model of procedural justice and research on perceptions of plea bargaining and perceptions of sexual assault.

Hypothesis 1: Victim Age

First, we expected that there would be a main effect of victim age such that plea bargaining involving a child would be supported less than that of an adult. In terms of procedural justice, this pattern of results was expected because the authorities would be perceived as uncaring, disrespectful, and biased toward the victim—allowing for a plea bargain (i.e., leniency) in the case of a child compared with an adult. In addition, although research directly comparing child sexual assault and adult rape is rare (Bottoms, Golding, Stevenson, Wiley, & Yozwiak, 2007), research has clearly shown that young child sexual assault victims are believed at a relatively high level (Bottoms et al., 2007), whereas adult rape victims are typically met with skepticism and blame (e.g., Golding, Lynch, & Wasarhaley, 2016; Lynch, Jewell, Wasarhaley, Golding, & Renzetti, in press; Lynch, Wasarhaley, Golding, & Simcic, 2013). Thus, we predicted that a child sexual assault would be perceived as more severe and support for plea bargaining would be lower than that of an adult rape (Herzog, 2003).

Hypothesis 2: Sentence Reduction

Second, a plea bargain that involved a reduction in prison time would be supported more than a plea bargain that avoided any prison time. Once again, procedural justice would argue that the authorities were uncaring, disrespectful, and biased toward the defendant in the case of a child sexual compared with that of an adult rape victim assault. Individuals will not approve of plea bargaining that “rewards” a defendant with no time served (see Rakoff, 2014). It should be noted that prior research (e.g., Herzog, 2003) did not specifically examine perceptions of no jail time versus reduced jail time of not serving time. Instead, Herzog (2003) investigated how different types of plea bargains (i.e., deleting a charge, replacing a charge with a less serious charge, lighter sentence) were perceived.

Hypothesis 3: Reason for Plea Deal

Third, a plea bargain based on the rationale of saving time would be supported less than that which avoided trauma for a victim. The authorities should be perceived as more caring and respectful toward a victim if they are using a plea bargain to avoid victim trauma. Also, trying to save time as a reason for a plea bargain should be perceived as biased toward the defendant. This hypothesis is also based partly on the finding from Herzog (2003) that saving time as an explanation was inversely related to plea bargaining approval.

Hypothesis 4: Participant Gender

Fourth, based on prior research investigating both child sexual assault (e.g., Bottoms et al., 2007; Golding, Lynch, Wasarhaley, & Keller, 2015; Golding, Wasarhaley, Lynch, Lippert, & Magyarics, 2015) and adult rape (e.g., Golding et al., 2016; Lynch et al., in press; Lynch et al., 2013), we predicted a main effect of participant gender, such that females would be more pro-victim than males. In the case of plea bargaining, we hypothesized that females would support plea bargaining less than males because plea bargaining would decrease the degree of punishment for the defendant. However, it should be noted that prior research investigating perceptions of plea bargaining (S. A. Cohen & Doob, 1989-1990; Herzog, 2003, 2004) has not shown participant gender to impact these perceptions.

Exploratory Interactions

Finally, in addition to the above hypotheses, we explored the possibility of moderation among pairs of the independent variables. Although prior research investigating perceptions of plea bargaining did not include moderation analyses, the possibility existed that the present variables would interact. For example, the age of the victim may moderate the sentence reduction variable such that a plea bargain involving probation when there was a 6-year-old victim might receive the least support from participants given that child sexual assault victims are typically perceived in a positive light (Bottoms et al., 2007). Also, participant gender may moderate sentence reduction. While females would be less supportive of plea bargaining regardless of whether a defendant received probation or a reduced jail term, males might be less supportive of plea bargaining when a defendant received probation compared with a reduced jail sentence.

Method

Participants

Participants consisted of 81 community members (51 females, 30 males) recruited online via Mechanical Turk (www.mturk.com; Buhrmester, Kwang, & Gosling, 2011); participants were paid 50 cents. All participants were at least 18 years old and U.S. citizens. Seven participants were dropped from the data set because of their performance on manipulation-check questions. Specifically, the data were analyzed to determine the distribution of correct answers across 24 possible manipulation-check questions (i.e., 3 questions × 8 within-participant conditions). The results of this analysis indicated that the vast majority of participants answered the manipulation-check questions at a high level. The distribution of accurate responses showed that 91.6% of participants answered 88% or more of the questions correctly (21 correct to 24 correct). The 88% level was the point at which there was a clear break in the distribution. That is, below this 88% level, there was a single participant for seven different correct answer values who answered fewer than 21 questions correctly. Based on this analysis, we dropped these seven participants. Thus, 74 participants were included in data analyses (46 women, 28 men). The mean age was 37.92 years old (range = 20-69 years old); nine participants (12%) had previously served on a jury. The racial composition was 78% White, 7% Asian, 7% African American, 3% Hispanic, and 5% mixed race.

Design

We used a 2 (victim age: 6 years old or 26 years old) × 2 (sentence reduction: half of the designated sentence or probation) × 2 (reason for plea bargain: to save time or to protect victim from the trauma of having to testify in court) × 2 (participant gender) mixed-factor design. Victim age, sentence reduction, and reason for plea bargain were within-participant variables (i.e., participants were presented materials in all eight conditions). The presentation of the materials was randomized for each participant. We analyzed participant gender as a quasi-independent, between-participant variable.

Materials

Vignettes

The vignettes described a sexual assault in which the defendant allegedly engaged in forcible and nonconsensual sexual intercourse with the victim. The vignettes varied only on what was necessary to manipulate the independent variables. An example vignette for the 6-year-old victim, reduced jail sentence, saving time condition was as follows:

The grand jury charges: On or about the 8th day of April 2012, in Fayette County, Kentucky, David Smith committed first-degree rape by engaging in forcible sexual intercourse with Kimberly Fleming. The prosecution alleged that David Smith, the step-father of the victim, raped Kimberly Fleming on the afternoon of April 8, 2012, at approximately 3:30 P.M. in Mr. Smith’s house. At the time of the alleged rape, Kimberly was 6 years old and Mr. Smith was 35 years old. Before the trial, negotiations were held between the defense attorney and the prosecutor in the judge’s office. A plea bargain was reached by which the defendant would plead guilty and, as a concession, the prosecutor stipulated that Mr. Smith would not serve any jail time. Although this crime had a possible range of 20 to 50 years in jail (Class A felony), the plea bargain stipulated that Mr. Smith would be on probation for 10 years. In the plea bargain, the prosecutor detailed the advantage of the plea bargain for the public: Important time would be saved by the court and allow for the prosecution of other cases. The judge approved this plea bargain.

After reading the vignette, participants were asked a series of comprehension questions to be sure participants were clear on the conditions represented in the vignette, such as “How old was the rape victim?” “What was the sentence agreed upon in the plea bargain?” and “What was the reason for the plea bargain?” If the participant responded incorrectly, they were instructed to read the vignette again carefully (Oppenheimer, Meyvis, & Davidenko, 2009). After answering the comprehension questions, participants were once again presented with the summary and questions asking their opinion of the plea bargain.

Vignette Questions

Participants received five questions for each vignette in a single order as there was no theoretical reason to believe the order of questions would significantly affect responses. First, participants rated how severe they found the crime to be. Next, participants answered four questions about the plea deal itself: (a) the extent to which they supported the judicial process (i.e., the plea bargain) in this situation, (b) how upset they were by the plea bargain, (c) how likely they would have been to approve the plea bargain if they were the judge, and (d) whether or not they thought justice was served by the plea bargain. All five of these rating questions were rated on a scale of 1 (not at all) to 7 (strongly/extremely).

Participants were then asked whether they felt the defendant received the correct sentence. If they answered “no,” they were asked to clarify whether they believed the defendant should have received either a prison sentence or probation sentence. Finally, participants who answered “no” indicated how many years they believed the defendant should have received for probation or prison.

Demographics

After reading and responding to all eight vignettes, participants supplied demographic information (e.g., gender, age, and ethnicity). Participants also indicated whether they had children and whether they had ever served on a jury (and, if so, what crime was charged and what was the verdict).

Procedure

Participants completed an online consent form that directed them to the experimental materials, which were administered online via Qualtrics.com. Because of the within-participant design and the possibility that participants might not attend to the slight variations in each vignette, they were given multiple-choice comprehension questions after reading each vignette to assess whether they remembered the levels of the independent variables presented (see Oppenheimer et al., 2009). If they answered any question incorrectly, the subsequent screen instructed them to pay better attention to the text. Participants had to reach a criterion of 88 correct to be included in the data analyses. Each participant read eight vignettes and answered 48 questions. The survey was self-paced, and it took approximately 20 min to complete.

Results

The overall means are presented in Table 1. We analyzed the rating data using a series of mixed-factor ANOVAs. For each hypothesis, we presented the results for the rating questions, the dichotomous correct-sentence question, and the sentencing time question.

Table 1:

Overall Means and Standard Deviations (in Parentheses) for All Dependent Measures as a Function of Victim Age, Sentence Reduction, and Reason for Plea Bargain

Independent variables	Severity	Support	Upset	Judge	Justice
Victim age
6-year-old	6.65 (0.79)_a	2.45 (1.46)_a	5.71 (1.27)_a	2.44 (1.37)_a	2.34 (1.32)_a
26-year-old	6.07 (0.98)_b	2.82 (1.41)_b	5.20 (1.28)_b	2.75 (1.36)_b	2.69 (1.40)_b
Sentence reduction
Probation	6.35 (0.91)_a	2.11 (1.33)_a	5.86 (1.17)_a	2.03 (1.17)_a	1.86 (1.19)_a
Reduced time	6.36 (0.83)_a	3.16 (1.69)_b	5.04 (1.49)_b	3.16 (1.68)_b	3.16 (1.65)_b
Reason for plea bargain
Time	6.37 (0.81)_a	2.54 (1.40)_a	5.53 (1.24)_a	2.44 (1.31)_a	2.41 (1.29)_a
Trauma	6.35 (0.89)_a	2.74 (1.43)_b	5.40 (1.22)_b	2.75 (1.39)_b	2.62 (1.36)_b

Note. Subscripts that differ in a column for each independent variable (i.e., victim age, sentence reduction, and reason for plea bargain) differ at p < .05.

Hypothesis 1: Victim Age

Child sexual assault (the 6-year-old victim) was perceived as more severe than adult rape (the 26-year-old victim), F(1, 72) = 87.30, p < .001, $η_{p}^{2}$ = .548. Furthermore, as predicted by Hypothesis 1, there was a main effect of victim age on all the four plea bargain questions, suggesting that plea bargaining involving the 6-year-old victim was perceived more negatively than the 26-year-old victim. Specifically, in cases involving a 6-year-old versus a 26-year-old, participants (a) yielded lower support for plea bargaining, F(1, 72) = 12.36,p = .001, $η_{p}^{2}$ = .147; (b) viewed plea bargaining as more upsetting, F(1, 72) = 27.71, p < .001, $η_{p}^{2}$ = .278; (c) viewed themselves as less likely of approving the plea bargain if one were a judge, F(1, 72) = 9.17, p = .003, $η_{p}^{2}$ = .113; and (d) viewed justice being served less by a plea bargain, F(1, 72) = 14.17, p < .001, $η_{p}^{2}$ = .164.

However, Hypothesis 1 was not supported for the dichotomous-choice question asking whether participants thought the punishment based on the plea bargain was correct. The number of participants who answered “no” when there was a 6-year-old victim (89%) compared with a 26-year-old victim (87%) was not significant, χ²(1) = 0.40, p = .527, φ = .026. Those who answered that the punishment was not correct almost unanimously chose prison as an alternative regardless of the victim’s age (6-year-old = 97% vs. 26-year-old = 99%).

We examined the data for those participants who answered that the punishment was not correct and that instead prison was the appropriate punishment. For those who chose prison as the appropriate sentence, we examined the number of years they chose for punishment. Because the possible prison sentence for a crime of child sexual assault (CSA; 20-50 years) and adult rape (10-20 years) varied, we analyzed the data in a categorical fashion. The categories were (a) below the minimum sentence, (b) equal to the minimum sentence, (c) midway between the minimum and maximum sentences, (d) equal to the maximum sentence, and (e) above the maximum sentence. As seen in Table 2, there was a significantly different pattern for 6-year-olds compared with 26-year-olds, χ²(4) = 10.10, p = .039, φ = .131. Specifically, more participants gave sentences midway between the minimum and maximum sentences for 6-year-olds compared with 26-year-olds, but more sentences at the minimum level and above the maximum level for 26-year-olds than 6-year-olds.

Table 2:

Percentage of Responses for Participants Who Did Not Agree With Plea Bargain and Felt That Jail Time Should Occur as a Function of Victim Age

Victim age	Below minimum sentence	Minimum sentence	Midway between minimum and maximum sentence	Maximum sentence	Above maximum sentence
6-year-old	12%	25%	32%	28%	2%
26-year-old	12%	32%	22%	29%	6%

Note. Rounding led to overall values above or below 100%.

Hypothesis 2: Sentence Reduction

The results supported Hypothesis 2; a plea bargain involving a reduction in prison time was perceived more positively than a plea bargain that avoided any prison time. Compared with a plea bargain that avoided prison time, a reduction in prison time led to participants (a) having higher support for plea bargaining, F(1, 72) = 43.40, p < .001, $η_{p}^{2}$ = .376; (b) viewing plea bargaining as less upsetting, F(1, 72) = 36.30, p < .001, $η_{p}^{2}$ = .335; (c) viewing themselves as more likely of approving the plea bargain if one were a judge, F(1, 72) = 57.41, p < .001, $η_{p}^{2}$ = .444; and (d) rating justice being served more by a plea bargain, F(1, 72) = 73.15, p < .001, $η_{p}^{2}$ = .504.

Hypothesis 2 was also supported for the dichotomous-choice question asking whether participants thought the punishment based on the plea bargain was correct. More participants answered “no” when the sentence was probation (97%) than when the sentence involved a reduction in jail (78%), χ²(1) = 49.60, p < .001, φ = .289. For those who answered that the plea bargain punishment was not correct, the participants were almost unanimous in choosing a prison sentence as an alternative (probation condition = 98% vs. reduced sentence condition = 99%). An examination of the data for those participants who answered that the punishment was not correct and that prison was the appropriate punishment (using the categories for prison described above) was not significant, χ²(4) = 6.74, p = .150, φ = .118.

Hypothesis 3: Reason for Plea Deal

Hypothesis 3 was also supported; a plea bargain based on the rationale of saving time was supported less than a rationale that avoided trauma for a victim. Specifically, the rationale of saving time compared with that of avoiding trauma for the victim resulted in (a) lower support for plea bargaining, F(1, 72) = 7.69, p = .097, $η_{p}^{2}$ = .097; (b) plea bargaining perceived as more upsetting, F(1, 72) = 6.72, p = .012, $η_{p}^{2}$ = .085; (c) a lower likelihood of approving the plea bargain if one were a judge, F(1, 72) = 16.84, p < .001, $η_{p}^{2}$ = .190; and (d) rating justice being served less by a plea bargain, F(1, 72) = 11.21, p = .001, $η_{p}^{2}$ = .135.

Once again, Hypothesis 3 was not supported for the dichotomous-choice question asking whether participants thought the punishment based on the plea bargain was correct. The chi-square analysis was not significant for “no” answers (88%) when time saved was the reason for the plea bargain compared with “no” answers (87%) when the plea bargain was to avoid trauma for a victim, χ²(1) < 1, p = .902, φ = .001. As before, the number of participants who chose a prison sentence as an alternative when they felt the plea bargain was incorrect (time condition = 98% vs. reduced sentence condition = 98%) was almost unanimous. Examining data for those participants who answered that the punishment was not correct and prison was the appropriate punishment using the categories for prison was also not significant, χ²(4) = 2.89, p = .577, φ = .079.

Hypothesis 4: Participant Gender

There was no support for Hypothesis 4 for the rating questions. The analyses comparing males and females were not significant for (a) perceptions of severity of the crime, F(1, 72) = 0.73, p = .397, $η_{p}^{2}$ = .010; (b) support for plea bargaining, F(1, 72) = 2.76, p = .101, $η_{p}^{2}$ = .037; (c) plea bargaining as more upsetting, F(1, 72) = 2.41, p = .125, $η_{p}^{2}$ = .032; (d) less likely of approving the plea bargain if one were a judge, F(1, 72) = 0.44, p = .507, $η_{p}^{2}$ = .006; and (e) justice being served less by a plea bargain, F(1, 72) = 1.41, p = .239, $η_{p}^{2}$ = .019.

With regard to the dichotomous-choice question asking whether participants thought the punishment based on the plea bargain was correct, similar proportions of females responded “no” (89%) as males (84%), χ²(1) = 2.85, p = .092, φ = .069. Also, for those who answered that the plea bargain punishment was not correct, females (99%) and males (97%) chose a prison sentence as an alternative in almost all cases. Finally, an examination of the data for those participants who answered that the punishment was not correct and prison was the appropriate punishment (using the categories for prison described above) was significant, χ²(4) = 15.40, p = .004, φ = .179. The pattern of results showed that males (9%) gave a prison sentence above the maximum more than females (2%).

Exploratory Interactions

Exploratory analyses conducted on the independent variables yielded three significant interactions.

Victim Age × Sentence Reduction

Both the questions that asked how upsetting the plea bargain was for participants, F(1, 72) = 7.61, p = .007, $η_{p}^{2}$ = .096, and whether participants would have approved the plea bargain, F(1, 72) = 4.51, p = .037, $η_{p}^{2}$ = .059, yielded significant Victim Age × Sentence interactions. With regard to how upsetting the plea bargain was for participants, the pattern indicated that the defendant receiving a reduced sentence both through reduced jail time and probation led to higher ratings of being upset with the plea bargain when the defendant was a child versus an adult: reduced jail sentence with a 6-year-old victim (M = 5.24, SD = 1.76) versus reduced jail sentence with a 26-year-old victim (M = 4.88, SD = 1.46), t(73) = 2.75, p = .008, d = .32; probation with a 6-year-old victim (M = 6.30, SD = 1.10) versus probation with a 26-year-old victim (M = 5.59, SD = 1.33), t(73) = 6.73, p < .001, d = .78.

The Victim Age × Sentence interaction for how much participants would approve the plea bargain if they were the judge also showed the impact that reduced sentencing can have with younger victims. Participants showed lower approval if the defendant received probation when the victim was a 6-year-old (M = 1.65, SD = 1.05) versus a 26-year-old (M = 2.16, SD = 1.19), t(73) = 4.92, p < .001, d = .57. However, approval for reduced jail sentence with a 6-year-old victim (M = 3.05, SD = 1.93) was not significantly different than the reduced jail sentence with a 26-year-old victim (M = 3.20, SD = 1.67), t(73) = 1.00, p = .323, d = .12.

Victim Age × Reason for Plea

There was also a significant two-way interaction of Victim Age × Reason for plea bargain for how upsetting participants found the plea bargain, F(1, 72) = 8.47, p = .005, $η_{p}^{2}$ = .105. This interaction continued to show the impact of a younger victim with regard to perceptions of plea bargaining. Comparisons revealed that participants viewed saving time for the prosecution with a 6-year-old (M = 5.93, SD = 1.33) as more upsetting than when the victim was a 26-year-old (M = 5.25, SD = 1.36), t(73) = 5.43, p < .001, d = .63. Participants were also more upset by the preventing trauma reason with a 6-year-old victim (M = 5.62, SD = 1.30) than a 26-year-old victim (M = 5.23, SD = 1.32), t(73) = 3.73, p < .001, d = .43.

Discussion

The present study investigated perceptions of plea bargaining involving a crime of sexual assault. Although prior research (Herzog, 2003) examined these perceptions with a single case of sexual assault (i.e., a rape case described as “girl rape”), it was unclear whether specific factors involving a sexual assault case (e.g., victim age), the type of plea bargain agreement (prison vs. probation), and the reason for a plea bargain (save victim from testifying vs. time saved) would affect perceptions. We found that each of these variables impacted the results as predicted. Participants were less supportive of plea bargaining when (a) the case involved a child vs. an adult, (b) the plea bargain only involved probation and no jail sentence, and (c) the rationale for the plea bargain was to save time versus avoid trauma due to testifying. In addition, the results were moderated at times by victim age. Primarily, a plea bargain that included a reduced sentence (e.g., probation) for any rationale was viewed more negatively for the younger, 6-year-old victim than the adult rape victim (i.e., 26-year-old).

The present results extend those of prior research investigating public perceptions of plea bargaining. In the context of sexual assault cases, individuals take the perspective of the victims in these cases and assess whether or not these victims received procedural justice (see Herzog, 2004; O’Hear, 2007; Tyler, 1990; Tyler & Huo, 2002). In this manner, individuals assess plea bargaining by viewing themselves as a vulnerable person in a dangerous world (i.e., a potential victim) who may be treated unfairly by a justice system that cares more about a defendant’s welfare than their own. The assessment of procedural justice manifested itself in the pattern of results found for the variables that were manipulated. First, participants viewed plea bargaining more negatively when a sexual assault involved a child versus an adult. This was a novel finding, yet consistent with Herzog’s (2003) results showing an inverse relationship between the perceived seriousness of a crime and approval for plea bargaining. Although the present study did not measure seriousness per se, the present results showed that a sexual assault involving a 6-year-old child was perceived as more severe than that of a 26-year-old adult, and that plea bargaining was approved of less in the former instance than the latter. With regard to procedural justice, it was simply unacceptable to participants to allow a plea bargain (i.e., leniency) in a case with a vulnerable child victim compared with an adult victim. Such an outcome showed the authorities to be uncaring, disrespectful, and biased toward the victim. Despite the robust finding of differences in how participants perceived plea bargaining for a child versus an adult, it should be noted that approval of plea bargaining was relatively low for both age groups. Thus, the present findings make clear that for any particular crime, there are degrees of seriousness/severity that ultimately influence perceptions of plea bargaining.

Second, the present results revealed that perceptions of plea bargaining depended a great deal on whether the plea bargain involved jail time or not. Participants had significantly lower approval of a plea bargain when there was no jail time as part of the agreement. Allowing a defendant to avoid jail time was likely seen as a “reward” and clearly not justice served. This is likely related to the fact that, in general, the public agrees with current sentencing practices, including sentence lengths (M. A. Cohen, Rust, & Steen, 2003). Thus, if a defendant is not sentenced to prison for a crime, the public will not view this in a positive light. Future research will be needed to determine exactly how the nature of sentence reduction impacts the perception of plea bargaining. For example, in the present study, the plea bargain mandated jail time to be half that of the original possible sentence. It is unclear, however, exactly how reductions in jail time will be perceived in sexual assault cases and other criminal cases. For example, will the public view a plea bargain that reduces jail time to a relatively insignificant amount with approval or is whether there some “jail threshold” that is perceived as worthy of a plea bargain.

Finally, the present results showed that participants’ approval of plea bargaining is very much a function of the reason for the plea bargaining. Participants were significantly lower in their approval ratings when the reason for the plea bargain was to save time (see Herzog, 2003) compared with saving the victim the trauma of testifying in court. The issue of offering a plea bargain to avoid victim trauma has not been investigated in prior plea bargain research. However, the present results make clear that participants were more concerned with procedural justice concerns (i.e., the welfare of a victim) than with a plea bargain leading to the timely running of the justice system.

In addition to the important main effects uncovered in the present study, there were also several interesting two-way interactions that were uncovered as part of exploratory analyses. It is important to note that interactions involving variables such as the nature of the crime and reason for the plea bargain were not examined in prior research investigating perceptions of plea bargaining (e.g., Herzog, 2003). Two of the three interactions involved participants judging how upset they were about the plea bargaining. This is interesting in and of itself because of the affective component of this judgment, and lends itself to future research involving the nature of plea bargaining at an affective level versus a judicial thought process level. The interactions also showed that participants were consistently upset with and disapproved of a plea bargain when it involved a young child victim compared with an adult victim. Of course, given the exploratory nature of these interactions and limited research literature surrounding procedural justice of public perceptions of plea bargaining, additional research will be necessary to fully capture the theoretical mechanisms that led to these results and that can explain other aspects of perceptions of plea bargaining.

It should be noted that the present results failed to support the hypothesis of a main effect of participant gender. This was unexpected, given the large amount of research involving courtroom perceptions of sexual assault that has shown male participants being less pro-victim (e.g., fewer guilty verdicts, lower ratings of victim credibility) than females in child cases (e.g., Bottoms et al., 2007; Golding, Lynch et al., 2015; Golding, Wasarhaley et al., 2015) and adult cases (e.g., Golding et al., 2016; Lynch et al., in press; Lynch et al., 2013). However, the presence of an effect of participant gender was neither analyzed nor discussed in prior research investigating perceptions of plea bargaining (e.g., Herzog, 2003). The noneffect of participant gender may be the result of several theoretically interesting processes. For example, rating one’s approval of a plea bargain is very different than judging the guilt of a defendant. In the former, there is no actual decision that must be made—The decision was already made by a judge. In the latter, a participant must make a difficult decision that involves consideration of many pieces of evidence. It is possible that gender differences might appear if participants were presented with a more detailed description of the case evidence. It is this evidence in a trial that appears to lead males to be more skeptical of a victim’s credibility and to assess more blame and responsibility to a victim than females (see Bottoms et al., 2007). Future research should examine this possibility by varying the amount of evidence presented in vignettes, basically as a way to increase the transparency of the case.

Although the present results offer compelling findings, there are some limitations that should be noted. First, plea bargaining was only investigated in the context of a sexual assault crime, and the independent variables manipulated were but three of a number of factors that might impact public perceptions of plea bargaining. With regard to the latter, it is possible that perceptions of plea bargaining might be positive if the evidence in a case is relatively weak, making conviction by a jury less likely. In this situation, plea bargaining might be viewed as the only hope to have any sense of justice in the case. We hope that in the future, researchers will continue to expand the nature of the crimes investigated and the potential impact of other independent variables on public perceptions of plea bargaining. A second limitation was that the experiment was completed online. However, research by Gosling, Vazire, Srivastava, and John (2004) has evaluated specific concerns regarding web-based studies (e.g., anonymity of the participants) that might impact the integrity of the data and found that their data were consistent with findings from traditional research methods. Finally, the present study did not fully uncover how perceptions of plea bargaining are the result of participants’ understanding of the impact of this legal process on the defendant and victim, and on whether the plea bargain was fair for each party. Clearly, additional research is needed to address these issues. Still, this is an early investigation and one of the few to examine perceptions of plea bargaining. Thus, we believe that at this time, it is critical to use a methodology such as the present one to maintain greater methodological control (see Haegerich & Bottoms, 2000).

The present findings add to a very limited amount of research on perceptions of plea bargaining. Although there are a few studies that have examined perceptions of plea bargaining, these studies were conducted a number of years ago and are limited in their scope (e.g., no prior inclusion of child sexual abuse). Also, the present study examined various types of perceptions, including that of affect (e.g., how upsetting was the plea bargain) to gain a better understanding of how individuals view plea bargains. Finally, the present study investigated public perceptions of plea bargaining in the context of procedural justice (Tyler & Huo, 2002). It is our hope that the present results will serve as a catalyst to future studies on perceptions of plea bargaining in various contexts, including different types of crimes. Given that most court cases are decided by plea bargaining (Bureau of Justice Statistics, 2013), it is important to understand various aspects of the plea bargaining process, including how the public perceives plea bargaining as a function of procedural justice. As S. A. Cohen and Doob (1989-1990; see also O’Hear, 2007) noted, knowledge of how the public perceives this aspect of the criminal justice system is critical for making sure that the public both respects and has confidence in the legal process (see also Rattner et al., 2001).

Footnotes

Jonathan M. Golding, PhD, is a professor of psychology at the University of Kentucky, Lexington, KY. His research investigates legal decision making in different types of victimization cases (e.g., child sexual assault, adult rape, stalking, domestic violence, and elder abuse).

Kellie R. Lynch, PhD, is an assistant professor of criminal justice at the University of Texas at San Antonio. She earned her doctoral degree in experimental social psychology from the Department of Psychology at the University of Kentucky. Her research interests include intimate partner violence, intimate partner gun violence/homicide, the implementation of domestic violence gun laws and policy, campus safety and sexual assault, stalking, and psychosocial theories related to victim blaming.

Sarah E. Malik, MS, is a doctoral student in experimental social psychology at the University of Kentucky in Lexington, KY. She also earned her MS in psychology at Arizona State University. Her research focuses on how extra-legal factors affect legal decision making, specifically in victimization cases involving lesbian, gay, bisexual, and transgender (LGBT) individuals.

Olivia Foster-Gimbel, BA, is a research assistant for the Stanford Graduate School of Business Behavioral Lab, where she facilitates research in organizational behavior and behavioral marketing. She is currently applying to PhD programs to study perceptions of inequality, advantage, and disadvantage.

References

Alschuler

A. W.

(1979). Plea bargaining and its history. Columbia Law Review, 79, 1-43. doi:10.2307/1122051

American Bar Association. (2016). How courts work: Steps in a trial. Retrieved from http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/pleabargaining.html

Bottoms

B. L.

Golding

J. M.

Stevenson

M. C.

Wiley

Yozwiak

J. A.

(2007). A review of factors affecting jurors’ decisions in child sexual abuse cases. In Read

J. D.

Ross

Toglia

Lindsay

(Eds.), The psychology of eyewitness memory (pp. 509-543). Mahwah, NJ: Lawrence Erlbaum.

Brown

Bunnell

(2006). Negotiating justice: Prosecutorial perspectives on federal plea bargaining in the District of Columbia. American Law Review, 43, 1063-1093.

Buhrmester

Kwang

Gosling

S. D.

(2011). Amazon’s Mechanical Turk: A new source of inexpensive, yet high-quality, data? Perspectives on Psychological Science, 6, 3-5. doi:10.1177/174569161039398

Bureau of Justice Statistics. (2013). Federal criminal case processing statistics. Washington, DC: Author. Retrieved from http://www.bjs.gov/fjsrc/var.cfm?ttype=one_variable&agency=USSC&db_type=SntcEvnt&saf=OUT

Burke

(2007). Prosecutorial passion, cognitive bias, and plea bargaining. Marquette Law Review, 93, 183-211.

Clarke

(2013, October 31). Dramatic increase in percentage of criminal cases being plea bargained. Prison Legal News. Available from https://www.prisonlegalnews.org

Cohen

M. A.

Rust

R. T.

Steen

(2003). Measuring public perceptions of appropriate prison sentences, executive summary. Washington, DC: U.S. Department of Justice.

10.

Cohen

S. A.

Doob

A. N.

(1989-1990). Public attitudes to plea bargaining. Criminal Law Quarterly, 32, 85-109.

11.

Community Oriented Policing Services. (n.d.). Procedural justice. Washington, DC: U.S. Department of Justice. Available from https://cops.usdoj.gov

12.

Fagan

R. W.

(1981). Public support for the courts: An examination of alternative explanations. Journal of Criminal Justice, 9, 403-418. doi:10.1016/0047-2352(81)90087-8

13.

Flanagan

T. J.

(1987). Change and influence in popular criminology: Public attributions of crime causation. Journal of Criminal Justice, 15, 231-243. doi:10.1016/0047-2352(87)90046-8

14.

Frantz

(2013, July). Ariel Castro agrees to plea deal to avoid death penalty. CNN News. Retrieved from http://www.cnn.com/2013/07/26/justice/ohio-castro/

15.

Golding

J. M.

Lynch

K. R.

Wasarhaley

N. E.

(2016). Impeaching rape victims in criminal court: Does concurrent civil action hurt justice? Journal of Interpersonal Violence, 31, 3129-3149. doi:10.1177/0886260515584342

16.

Golding

J. M.

Lynch

K. R.

Wasarhaley

N. E.

Keller

(2015). Courtroom perceptions of child sexual assault: The impact of an eyewitness. Criminal Justice and Behavior, 42, 763-781. doi:10.1177/0093854814568552

17.

Golding

J. M.

Wasarhaley

N. E.

Lynch

K. R.

Lippert

Magyarics

C. L.

(2015). Improving the credibility of child sexual assault victims in court: The impact of a sexual assault nurse examiner. Behavioral Sciences & the Law, 33, 493-507. doi:10.1002/bsl.2188

18.

Gosling

S. D.

Vazire

Srivastava

John

O. P.

(2004). Should we trust web-based studies? A comparative analysis of six preconceptions about internet questionnaires. American Psychologist, 59, 93-104. doi:10.1037/0003-066X.59.2.93

19.

Haegerich

T. M.

Bottoms

B. L.

(2000). Empathy and jurors’ decisions in parricide trials involving child sexual assault accusations. Law and Human Behavior, 21, 421-448. doi:10.1037/0003-066X.59.2.93

20.

Herzog

(2003). The relationship between public perceptions of crime seriousness and support for plea-bargaining practices in Israel: A factorial-survey approach. The Journal of Criminal Law and Criminology, 94, 103-132. doi:10.2307/3491305

21.

Herzog

(2004). Plea-bargaining practices: Less covert, more public support? Crime & Delinquency, 50, 590-614. doi:10.1177/0011128703262112

22.

Lynch

K. R.

Jewell

J. A.

Wasarhaley

N. E.

Golding

J. M.

Renzetti

C. M.

(in press). Great sexpectations: The impact of participant gender, defendant desirability, and date cost on attributions of a date rape victim and defendant. Journal of Interpersonal Violence.

23.

Lynch

K. R.

Wasarhaley

N. E.

Golding

J. M.

Simcic

(2013). Who bought the drinks? Juror perceptions of intoxication in a rape trial. Journal of Interpersonal Violence, 28, 3205-3022. doi:10.1177/0886260513496900

24.

O’Hear

M. M.

(2007). Plea bargaining and victims: From consultation to guidelines. Marquette Law Review, 91, 323-347.

25.

O’Hear

M. M.

(2008). Plea bargaining and procedural justice. Georgia Law Review, 42, 407-469.

26.

Oppenheimer

D. M.

Meyvis

Davidenko

(2009). Instructional manipulation checks: Detecting satisficing to increase statistical power. Journal of Experimental Social Psychology, 45, 867-872. doi:10.1016/j.jesp.2009.03.009

27.

Rakoff

J. S.

(2014). Why innocent people plead guilty. The New York Review of Books. Retrieved from http://www.nybooks.com

28.

Rattner

Yagil

Pedahzur

(2001). Not bound by the law: Legal disobedience in Israeli society. Behavioral Sciences & the Law, 19, 265-283. doi:10.1002/bsl.435

29.

Redlich

A. D.

Bushway

S. D.

Norris

R. J.

(2016). Plea decision-making by attorneys and judges. Journal of Experimental Criminology, 12, 537-561.

30.

Rich

Sampson

(1990). Public perceptions of criminal justice policy: Does victimization make a difference? Violence and Victims, 5, 109-118.

31.

Slobogin

(2016). Plea bargaining and the substantive and procedural goals of criminal justice: From retribution and adversarialism to preventive justice and hybrid-inquisitorialism. William & Mary Law Review, 57, 1505-1547.

32.

Stuntz

(2004). Plea bargaining and criminal law’s disappearing shadow. Harvard Law Review, 117, 2548-2569. doi:10.2307/4093405

33.

Tor

Gazal-Ayal

Garcia

S. M.

(2010). Fairness and the willingness to accept plea bargain offers. Journal of Empirical Legal Studies, 7, 97-116. doi:10.1111/j.1740-1461.2009.01171.x

34.

Tyler

T. R.

(1990). Why people obey the law. New Haven, CT: Yale University Press.

35.

Tyler

T. R.

Huo

Y. J.

(2002). Trust in the law: Encouraging public cooperation with the police and the courts. New York, NY: Russell Sage.

36.

Wendel

P. T.

(1999). The case against plea bargaining child sexual abuse charges: “Deja vu all over again.” University of Missouri Law Review, 64, 317-381.

37.

White

(2016, June 27). Prosecutor fires back about controversial plea deal for former college student accused of two rapes. Law Newz. Available from http://lawnewz.com