EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, October 6, 2015

Undisclosed Episode 12 & the Prisoners' Dilemma in the American Criminal Justice System

Last night, we premiered Episode 12 of the Undisclosed Podcast: "Prisoners' Dilemma." I suggested the title in part because of the classic prisoners' dilemma problem from game theory. The prisoners' dilemma, however, is not something merely relegated the realm of the theoretical. It is something that plays out every day in a criminal justice system dominated by plea bargaining.

 

Here's Judge Easterbrook talking about a real world version of the prisoner's dilemma in Page v. United States, 884 F.2d 300 (7th Cir. 1989):

Students of strategy and bargaining cut their teeth on the game of Prisoners' Dilemma. Two prisoners, unable to confer with one another, must decide whether to take the prosecutor's offer: confess, inculpate the other, and serve a year in jail, or keep silent and serve five years. If the prisoners could make a (binding) bargain with each other, they would keep silent and both would go free. But they can't communicate, and each fears that the other will talk. So both confess. Studying Prisoners' Dilemma has led to many insights about strategic interactions. See Thomas C. Schelling, The Strategy of Conflict 53-80, 119-61 (1960; 1980 rev.); Robert Axelrod, The Evolution of Cooperation (1984). Eldon Page did not have the leisure to study the game before he had to play it.

Page and Maurice Falls were charged with armed bank robbery. On the day set for Page's trial, the prosecutor appeared with Falls in tow. Falls had signed an agreement promising, in exchange for a lower sentence, to plead guilty and testify against Page. After the judge accepted Falls' plea, Page caved in and pleaded guilty too. Back in jail, Falls and Page were able at last to coordinate. Each presently asked leave to withdraw his plea. Too late, the judge said. Both were sentenced and appealed. We affirmed in an unpublished order.

Page later appealed, claiming that he received the ineffective assistance of counsel. The Seventh Circuit, however, rejected this claim, concluding that

Counsel advised Page to get the best deal he could after Falls turned against him. Page is not the first and will not be the last to feel the sting of Prisoners' Dilemma, and the Constitution does not demand that counsel escape a predicament that game theorists consider inescapable in one-shot performances.

Later, in United States v. Maddox, 48 F.3d 791 (4th Cir. 1995), the Fourth Circuit reached a similar conclusion, noting that

Such versions of the "Prisoners' Dilemma" during plea negotiations are rather commonplace because they are effective and courts have held that they are constitutional. See, e.g., Page v. United States, 884 F.2d 300 (7th Cir. 1989) (discussing the Prisoners' Dilemma and denying an ineffective counsel claim based upon counsel's inability to solve a Prisoners' Dilemma plea offer). The combination of statutory mandatory minimum sentences and the exclusive power to move for downward departure based upon substantial assistance allow the government to play hardball during plea negotiations.

-CM

https://lawprofessors.typepad.com/evidenceprof/2015/10/last-night-we-premieredepisode-12of-the-undisclosed-podcast-prisoners-dilemma-i-suggested-the-title-in-part-because-of-the.html

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Comments

Interesting. Are there other countries that don't rely so much on plea bargaining? It seems to me in the USA, the cops are encouraged to charge a suspect with as many (as an severe) crimes as possible... knowing that the state's attorney will not use them all and that ultimately they will all be decreased.

Posted by: CeeJay | Oct 6, 2015 8:13:03 AM

In England, the "trial penalty" is restricted to 30%. So plea bargains exist, but a much higher percentage of cases go to jury trial.

Posted by: Eliot Clingman | Oct 6, 2015 9:09:09 AM

In France, there was no plea bargaining until recently, and most cases are still not resolved by plea bargain.

Posted by: Colin | Oct 6, 2015 10:58:37 AM

Seems to me that plea bargains causes so many of these false confessions and prosecutorial misconduct, throw the book at them knowing they will then plea out to avoid life or worse. Is there any hope in sight?

Posted by: Robert Kirkpatrick | Oct 6, 2015 11:49:03 AM

Isn't part of the problem that we simply don't have the structure, the jails and courts and staffing, to manage trials for everyone who is indicted? Things fall apart .... what rough beast ....
This logistics problem is mentioned in the Medium article.

How much of this is the unintended consequence of more police and more policing from the war on drugs and "tough on crime" policies?

Posted by: boo | Oct 6, 2015 12:37:38 PM

Our population is so large we could never have a jury trial for everyone. But I still think the cops often over-charge. If there were no plea bargains they might not do that, but it would take a LONG time for our system to adjust.

Posted by: CeeJay | Oct 6, 2015 12:49:49 PM

Prosecutors who engage in game theory are failing in their primary obligation - to do justice.

Posted by: Joe Heinzmann | Oct 7, 2015 6:23:40 AM

"Our population is so large we could never have a jury trial for everyone." CeeJay, what are you saying? Is our population so large we can never have public schools for everyone ... that's a rhetorical question to make the point that if we have so many criminals among us that we can't provide justice for the accused, well then what exactly are we about? Shouldn't we be concerned that was have many grand buildings devoted to the rule of law, and then in practice we reduce justice to plea deals done in the sub-basements of our grotty municipal buildings?

Posted by: boo | Oct 7, 2015 7:52:42 AM

Boo- Completely agree. Our judicial system is set up to create a revolving door, usually at the expense of minorities & the poor. Literally & figuratively. Especially now with the privatization of prisons, it's BIG business for some. Except public defenders... They get paid squat & have caseloads they feel they can't properly handle. The "machine" likes it that way. It's disgusting.

On a side note, if no one has seen it "Gideon's Army" is a good documentary about how unfair the public defenders offices work. Bless them for what they do.

Posted by: CareBear | Oct 9, 2015 10:18:25 AM

This is totally pedantic, but the judge describes an assurance game (closely related to a stag-hunt game), not a prisoner's dilemma. For it to be a prisoner's dilemma, the sentence would need to be lower in case only 1 prisoner confessed than if neither confessed. It doesn't matter here, but they are different classes of games in game theory.

Posted by: IanVL | Oct 13, 2015 8:53:29 AM

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