Plea Bargaining, Judicial Decision-Making Models, and Group Processes

Final Exam

LaTasha T. Johnson

Political Science 460 Honors


Plea Bargaining

1.[i]         The court, the state, and the defendant, all  logically have something to gain from a plea bargained case.  Plea bargaining “pays off”  for the respective parties.  In terms of the strategic motivations behind plea bargaining, there are correlates in the civil litigation system.  In general, there is the common notion shared by principle court actors that plea bargains are rewarded.  The court wants to encourage plea bargaining in order to expedite the judicial process, to eliminate unnecessary trials, and to lower the caseload of the court.  The common perception here is that judges frown upon waste of state money.  The state in turn saves time, resources, and money.  Defendants who are undeniably guilty will most likely receive a harsher sentence if they waste time and money to trial.  Trial defendants are more likely to go to prison than plea bargainers.  Attorney advice and time spent in jail may contribute to the incentives to plea bargain.  Plea bargaining minimizes “time, expense, and uncertainty”.  Attorneys may wish to avoid trials.  The defendant plea bargains to lessen the severity and increase the flexibility of the sentence, but if the defendant has little to lose either way, he or she may choose to go to trial.  Logically, a person would not plead guilty if there were no chance of a lighter sentence.  The incentive for plea bargaining must exceed the incentive for a trial.  Brereton and Casper discovered that plea bargaining really does pay off.  It is virtually a self-fulfilling prophecy.  The court avoids burdening the caseload.  The state saves money.  The defendant receives a lighter sentence than she or he would have received in trial.  In the study conducted by Brereton and Casper, they clearly state that the plea bargaining phenomenon does not necessarily pertain only to one particular type of judicial system.  There are correlates with the civil litigation system.  Litigants go to court if their probabilities to litigate outweighs the cost.  For the plaintiff, this means that the probability of winning must outweigh losing and court costs.  There must be an expected likelihood of success.  An attorney decides if the court is the proper venue for resolving the case.  In the pleading stage, there is an effort to settle the dispute in order to avoid trial, save time and money, and maximize gains and minimize losses.

Judicial Decision-Making Models

2.[ii]        There are two main models of judicial decision-making, the legal model and the extralegal model.  The first model is also referred to as the model of “doctrinal analysis” or as “positivist, analytical, or jurisprudence” or as the law school model.  The legal model is based on the assumption that the rule of law, legal doctrine, or the fact pattern of the case is the main factor in decision-making.  In this model, the arrival to a judicial outcome is simple.  It is based largely on precedent.  The judges define the similarities among the current case and previous cases; the legal doctrine is identified in the previous cases and applied to the current case.  Judicial decision-making is constrained by the law.  This model assumes that the court is strictly bound to precedent; by contrast, the other model assumes that the court is a political actor.

The second model is also referred to as the “political” model.  By comparison, it is similar to the first model but allows for others variables.  The extralegal model  includes sociological, psychological, and political factors outside of the rule of law and legal doctrine.  While the legal model is constrained by the law, the extralegal model is based on the assumption that the legal model is inadequate and other factors, outside of the law must be determinants, especially where there are “competing precedents”.  Judicial decision-making involves internal and external factors, and not simply precedent as in the first model..  External factors may include the power and influences of the other branches of government.  Among other things, Congress may enact legislation or propose amendments to void judicial decisions.  The president may influence Congress and individual justices.  Judicial decisions are dependant upon outside forces for implementation and enforcement of its decisions.  Political party affiliation may play a role as well.

Neither model has greater explanatory power.  George and Epstein discovered that superficially both models have great explanatory power.  A closer look found that the legal model was increasingly liberal and the extralegal one was increasingly conservative.    They suggest an integrated model incorporating both legal and extralegal factors in explaining judicial outcome.  If I were to construct and test a model explaining the decisional behavior of individual Supreme Court justices, it would closely resemble the extralegal model.  George and Epstein discovered that extralegal factors exerted more influence, almost double, on a given court decision.  However, they recommend an integrated model for a more complete explanation of outcomes.  The extralegal model is the choice of political scientists because it is more consistent with the individual justice’s behavior.  The forces explaining the judicial behavior of individual justices should include the justices’ attitudes and ideology, the liberal-ness or conservative-ness of the individual judges, the political climate of the country, the political composition of Congress and Presidential influence.  After legal doctrine is taken into account, it is the extralegal factors which come into play in the individual justice’s behavior.  Attitude and ideology affect judicial behavior when the issues are a question of morality or interpretation and not simply legal doctrine verbatim.  Whether a justice is liberal or conservative is a good indicator of ideological beliefs.  The political climate of the time may call for certain types of decisions such as in the Civil Rights Movement.  During war times or times of crisis or turmoil, the courts are more consistent with public opinion.  Another example is in 1944, when the court ruled that extraordinary times call for extraordinary actions, concerning the Japanese internment camps of World War II.  The decisions of the court do not exist in a void.  The ideology of the court may not correspond to the ideology of the current Congress.  The court may take this into consideration.  Historical evidence shows that Congress does exercise its powers concerning court decisions.  For example, in 1895, in Pollock v Farmers’ Loan and Trust, the court struck down the entire system of income tax.  In 1913, the Sixteenth Amendment allowed for direct tax.  the President is important because he may be influential in Congress as well as influential to the ideology of particular justices.

Group Processes

3.[iii]        Group processes are important in shaping appellate court decisions and influence.  They have a particular significance and various effects.  They are significant in shaping the policy involved in court decisions when extralegal factors come into play.  The effects are the favorable rulings of the court which further group gains, politically and judicially.  There are certain conditions which work in favor of and against group influence on decisions.  These conditions include the legal doctrine involved in the case such as precedent.  Extralegal factors come into play here as well.  The individual judge also has an influence on these group processes.  The degree to which the judge is influenced by group processes weighs on the court decisions.  This influence may vary by the type of judge.  Strict adhere-ers to the legal model of judicial decision-making will more likely be less influenced by group processes than judges who are strongly influenced by extra-legal factors.  Court precedent lasts longer than legislation.  There is definitive court rule.  It may be easier to convince judges than Congress.  Upset by legislation, groups have a perceived chance of success in the courts.  Groups may also use the courts to enforce political gains.  Group members may also place pressure on groups to prove their legitimacy as organizations.  Groups may engage in direct litigation or file amicus curiae.  There is group assistance and advocacy on behalf of individuals.  This increases the individual litigants resources.  Groups often become involved in policy-oriented cases.  Group participation before the court is high.  Groups may influence public opinion about a court.


[i]The source for this answer comes primarily from the Brereton, Casper article.

[ii]The source for this answer comes primarily from the George, Epstein article.

[iii]I could not find information in class notes or available readings to answer these particular set of questions.  I was unable to contact classmates for access to the Baum text.  Admittedly, the answer given here may not even really address the questions asked.


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